^hL 


h.-Cr—. 


GRANNAN  S 


Warning  Against  Fraud 


-AND- 


VALUABLE  INFORMATION. 


A  TREATISE   UPON 


Subjects  Relating  to  Crime  and  Business,  and  also  Embracing 
Many  Practical  Suggestions  for  Everyday  Life. 


—PUBLISHED  BY— 

THE  GRANNAN  DETECTIVE  BUREAU  CO., 

CINCINNATI,   OHIO. 


AKRON,   O.: 

THE  WERNER  PTG.  &  LITHO.  CO., 

1890. 


Entered  according  to  Act  of  Congress,  in  the  year  ifoo,  by 

JOSEPH  C.  GRANNAN, 

In  the  Office  of  the  Librarian  of  Congress,  at  Washington,  D.  C. 


pv 

67^ 

6c% 


PReFftce. 


WE  are  aware  that  it  is  an  unusual  occurrence  for  a  Detective 
Bureau  or  Agency  to  publish  a  book,  especially  one  of  so 
great  scope  and  general  application  to  all  classes  as  we 
have  attempted  to  make  this  one.  But  a  Detective  Agency 
sits  with  its  fingers  on  the  pulse  of  the  nation.  It  has  an  opportunity 
to  know  and  appreciate,  better  than  almost  any  other  observer  of  mis- 
cellaneous life,  the  wants  and  weaknesses  of  the  masses  of  the  people. 
Did  it  ever  occur  to  you,  reader,  that  when  a  burglar  wants  to  enter  a 
house  that  he  looks  for  the  weakest  spot  upon  which  to  make  his  at- 
tack ?  So  when  a  confidence  rogue  sets  out  to  swindle  you  out  of  your 
money  he  studies  carefully  your  mental  peculiarities  and  assails  you  in 
the  weakest  point.  Business  men,  merchants,  bankers,  farmers,  me- 
chanics, housewives,  all  have  peculiar  habits  of  life  that  lay  them  liable 
to  the  traps  of  designing  men. 

Then  again  from  our  position  with  relation  to  the  detection  of 
crime  and  punishment  of  criminals,  we  have  observed  the  crudeness  of 
the  work  of  detectives  and  arresting  officers.  Flagrant  crimes  have 
often  gone  undiscovered  for  want  of  a  little  intelligent  work  in  tracing 
palpable  clews.  Red-handed  criminals  have  been  set  at  liberty  or 
evaded  arrest  through  the  ignorance  or  stupidity  of  an  officer. 

These  remarks  will  disclose  our  purpose,  which  we  may  be  permitted 
to  say  we  believe  to  be  a  laudable  one,  and  will  also  disabuse  the 
reader's  mind  to  some  extent,  we  trust,  of  the  idea  that  it  is  not  within 
the  province  of  a  Detective  Bureau  or  Agency  to  publish  a  book.   • 

Without  attempting  to  outline  the  work,  we  will  say  that  we  believe 
that  detectives  and  arresting  officers  will  derive  much  profit  from  a 
study  of  the  pages  devoted  to  the  Law  of  Crime  and  How  to  Proceed. 
Especially  interesting  has  been  the  preparation  of  the  chapter  upon 
Extradition,  and  we  believe  the  information  to  be  found  there  has  not 
heretofore  been  furnished  to  the  public  in  any  popular  form. 

We  trust  a  careful  study  of  the  chapter  on  Counterfeiting  and  Coun- 

(iii) 


IV  PREFACE. 

terfeit  Money  will  largely  protect  the  business  community  against  this 
extensive  class  of  frauds,  while  the  information  on  the  swindling 
schemes  of  the  day  is  exhaustive  and  has  not  heretofore,  to  our  knowl- 
edge, been  collected  in  any  convenient  form,  and  we  believe  intelligent 
study  of  the  plans  and  methods  of  the  schemers,  and  faithful  observ- 
ance of  the  principles  we  have  laid  down,  will  save  careful  readers  from 
their  snares. 

In  the  part  devoted  to  the  Law  of  Business  we  have  attempted  to 
touch  the  practical  side  of  life  in  such  a  way  as  to  save  all  classes  of 
people,  merchants,  bankers,  farmers,  mechanics,  laborers,  from  the 
errors  resulting  from  ignorance  of  the  common  laws  and  rules  of  busi- 
ness. This  general  ignorance  of  these  subjects  arises  from  two  facts, 
neither  of  which  is  the  fault  of  the  people  themselves  :  first,  the  writers 
on  these  subjects  have  couched  their  ideas  in  technical  language,  readily 
understood  "by  attorneys  and  those  familiar  by  long  practice  with  legal 
phraseology,  but  not  at  all  clear  to  the  popular  reader.  Second,  the 
works  have  been  published  in  such  form  and  at  6uch  price  as  to  make 
them  practically  beyond  the  reach  of  the  general  public.  We  have  at- 
tempted to  avoid  both  these  features  and  have  retained  only  so  much  of 
the  technical  language  of  the  law  as  is  necessary  to  make  definitions 
and  explanations  correct,  and  have  introduced  popular  language  that 
we  believe  will  make  these  subjects  clear  even  to  those  who  have  no 
knowledge  whatever  of  the  law. 

As  the  work  is  intended  not  only  for  the  officer's  and  detective's 
study,  the  merchant's  desk  and  the  mechanic's  bench,  but  for  family 
and  home  use  as  well,  we  have  ventured  to  insert  a  small  department  of 
miscellaneous  information  touching  a  variety  of  subjects  relating  to  the 
health,  happiness  and  education  of  the  domestic  circle,  from  which  we 
trust  all  classes  will  derive  some  benefit. 

We  submit,  then,  without  further  explanation  or  apology  to  the 
verdict  of  an  impartial  public  who  alone  shall  say  whether  we  have 
accomplished  in  a  creditable  manner  the  task  we  set  for  ourselves. 

THE  GRANNAN  DETECTIVE  BUREAU  CO. 


Ttte  LftW  OP  CRIMe. 


THE  elements  of  crime  are  the  same  in  all  the  States  of 
the  Union;  indeed,  in  essential  features,  the  same  in 
the  whole  civilized  world.  Since  the  tables  of  stone 
were  handed  down  from  Mount  Sinai  there  have  been  certain 
acts  recognized  by  almost  the  whole  human  race  as  inimical  to 
social  order  or  individual  rights.  The  great  Jehovah's  "Thou 
shalt  not  kill"  has  thundered  down  the  ages  with  cumulative 
momentum  and  comes  to  us  now  infinitely  multiplied  in  force 
by  a  responsive  assent  as  to  its  justness  from  the  breasts  of 
countless  millions,  in  every  age  and  clime. 

False  notions  of  religion  have  led  some  misguided  and  semi- 
civilized  peoples  into  the  practice  of  offering  up  human  sacri- 
fice to  appease  the  imagined  wrath  of  a  self-imposed  deity,  but 
the  universal  abhorrence  in  which  such  practices  are  held  by 
all  right-minded  people  shows  how  strongly  intrenched  in  the 
human  mind  is  the  justice  of  the  Mosaic  law.  The  principle  of 
punishment  laid  down  by  that  same  ancient  authority,  "an  eye 
for  an  eye,  and  a  tooth  for  a  tooth,"  has  adhered  to  the  practice 
of  courts  and  juries  through  all  the  intervening  centuries  with 
wonderful  persistence.  In  fact  it  is  only  within  recent  years  that 
a  few  of  the  States  have  ventured  to  relax  the  law  of  a  life  for 

5 


6  THE    LAW    OF   CRIME. 

a  life  in  the  case  of  murder.  And  the  prospect  of  an  entire 
abolition  of  the  death  penalty  is  not  nattering. 

In  this  country  there  may  be  slight  differences  in  stat- 
utory definitions  and  there  are  unquestionably  considerable 
variations  in  the  degree  or  amount  of  punishment  attached  to 
certain  crimes  in  the  different  States,  yet  so  uniform  is  the 
theory  and  practice  of  criminal  law  in  the  States  that  an  expo- 
sition of  the  penal  code  in  one  will  suffice  to  give  a  general  and 
correct  idea  of  all. 

It  is  not  within  the  scope  of  this  work  to  enter  upon  a 
thorough  treatise  of  the  law  of  crime  and  criminal  procedure. 
We  can  only  hope  so  to  expose  the  nature  of  crime  and  give 
such  definitions  of  the  great  divisions,  and  such  information  as 
to  the  proper  initial  steps  to  be  taken  both  in  ferreting  out 
crime  and  in  starting  the  wheels  of  justice  that  the  reader  may 
proceed  intelligently  to  a  point  where  a  skilled  attorney  must 
per  necessitate  be  brought  into  the  case. 

As  the  criminal  code  of  Ohio  is  perhaps  as  nearly  represen- 
tative of  all  the  States  as  any  that  could  be  selected,  we  take 
that  as  the  basis  of  our  remarks  upon  the  L,aw  of  Crime. 


GRANNAN'S 

Warning  Against  Fraud. 


r 


CHAPTER  I. 

General  Definitions  and  Remarks. 

/'"P^HE  word  crime  is  defined  by  Bouvier  as  "an  act  com- 
mitted or  omitted  in  violation  of  a  public  law  forbidding 
or  commanding  it."  Bishop,  in  his  admirable  work 
on  Criminal  Law,  defines  crime  as  "a  wrong  which  the 
government  notices  as  injurious  to  the  public,  and  punishes  in 
what  is  called  a  criminal  proceeding  in  its  own  name." 

Crime  is  the  general  word  covering  all  violations  of  law. 

Crimes  are  divided  into  two  general  classes :  Felonies  and 
Misdemeanors.  This  division  is  based  solely  upon  the  degree 
of  punishment  attached  to  crimes. 

Offenses  which  may  be  punished  by  death  or  imprisonment 
in  the  penitentiary  are  felonies ;  all  other  offenses  are  misde- 
meanors. Felony,  by  the  common  law  of  England,  was  an 
offense  which  occasioned  a  total  forfeiture  of  either  lands  or 
goods,  or  both,  and  to  which  capital  or  other  punishment  might 
be  added  according  to  the  degree  of  guilt.  At  common  law  in 
this  country  the  word  has  no  clearly  defined  meaning,  but  is 
always  understood  to  include  offenses  of  considerable  gravity. 
In  nearly  all  the  States,  however,  it  has  been  clearly  defined  by 
statute.  The  above  definition  is  the  Ohio  statutory  definition 
as  set  forth  in  Section  6795,  Revised  Statutes.  The  word  is  a 
technical  one  and  must  be  understood  in  its  recognized  legal 
sense  unless  the  Legislature  has  given  it  a  prescribed  meaning 
by  an  interpretation  clause  in  the  act  in  which  it  is  used,  in 

7 


8  THE   LAW   OF   CRIME. 

which  case  it  must  be  understood  as  interpreted,  unless  to  do  sc 
would  be  repugnant  to  reason  or  to  other  provisions  of  the 
same  act. 

Misdemeanor  is  a  term  used  at  the  common  law  to  express 
every  offense  inferior  to  felony  that  was  punishable  by  indict- 
ment or  by  particular  prescribed  proceedings.  According  to 
this  definition  it  did  not  include  a  large  number  of  offenses,  of 
a  minor  nature,  over  which  magistrates  had  exclusive  summary 
jurisdiction,  but  under  the  statute  the  meaning  has  been  en- 
larged to  include  all  other  offenses  except  felonies. 

There  are  no  common  law  offenses  in  Ohio.  No  act,  how- 
ever hurtful  or  immoral  it  may  be,  is  punishable  as  a  crime  in 
Ohio  unless  that  act  is  specially  enjoined  or  prohibited  by  the 
statute  laws  of  the  State.  This  is  also  true  of  all  other  States 
that  have  undertaken  complete  statutory  supervision  of  crime. 
In  a  few  States  the  common  law  relating  to  crimes  still  pre- 
vails, and  in  a  few  others  there  is  a  mixture  of  common  and 
statutory  law. 

Effect  of  Conviction  of  Felony. — A  person  convicted  of  a 
felony  shall,  unless  his  sentence  be  reversed  or  annulled,  be  in- 
competent to  be  an  elector  or  juror,  or  to  hold  any  office  of 
honor,  trust  or  profit  in  this  State.  Or  a  person  who  has  been 
actually  imprisoned  in  the  penitentiary  of  any  other  State  for  a 
crime  which  is  a  felony  in  this  State  is  incompetent  to  be  an 
elector  or  juror,  or  hold  any  office  of  honor,  trust  or  profit  in 
the  State. 

Pardon. — A  pardon  by  the  Governor  or  the  lawful  pardon- 
ing power  effects  a  restoration  of  the  rights  and  privileges 
thus  forfeited.  If  the  crime  and  imprisonment  took  place  in 
another  State,  then  a  pardon  by  the  Governor  of  that  State  will 
restore  his  rights  and  privileges  in  this. 

A  pardon  will  not  release  from  costs  if  the  sentence  was  for 
imprisonment  and  costs. 


GENERAL   REMARKS.  9 

Rights  and  privileges  forfeited  by  conviction  of  a  felony 
and  imprisonment  may  be  restored  by  a  pardon  after  the  cul- 
prit has  served  out  his  full  term  and  been  discharged.  Such 
disabilities  are  considered  a  part  of  the  punishment  and  not 
mere  incidents  to  a  sentence 

Aiders  and  Abettors. — Whoever  aids,  abets  or  procures  an- 
other to  commit  an  offense  may  be  prosecuted  and  punished  as 
if  he  were  the  principal  offender. 

Imprisonment. — Means  confinement  in  the  county  jail  unless 
otherwise  stated. 

The  words  "or"  and  "and." — When  the  statute  prescribes  a 
punishment  consisting  of  fine  and  imprisonment  the  court  has 
no  option  in  the  matter  but  must  impose  both.  But  if  the 
statute  read  fine  or  imprisonment,  or  both,  the  court  may  ex- 
ercise its  discretion  in  the  case  and  omit  either  the  fine  or 
imprisonment.  If  the  words  "or  both"  are  omitted  from  the 
statute  either  a  fine  or  imprisonment  may  be  imposed,  but  not 
both. 


CHAPTER  II. 

Offenses  Against  the  Sovereignty  of  the  State. 

TREASON. 

WHOEVER  levies  war  against  this  State  or  the  United 
States,   or   knowingly   adheres   to   the  enemies  of 
either,  giving  them  aid  and  comfort,  is  guilty  of 
treason  against  the  State  of  Ohio,  and  shall  be  im- 
prisoned in  the  penitentiary  during  life." — O.  Rev.  Stat.,  6806. 

MISPRISION  OF  TREASON. 

"Whoever,  having  knowledge  that  any  person  has  com- 
mitted treason,  or  is  about  to  commit  treason,  willfully  omits 
or  refuses  to  give  information  thereof  to  the  Governor  or  some 
judge  of  the  State,  or  to  the  President  of  the  United  States,  is 
guilty  of  misprision  of  treason  and  shall  be  imprisoned  in  the 
penitentiary  not  more  than  twenty  nor  less  than  ten  years." — 
O.  Rev.  Stat.,  6807. 

No  person  shall  be  convicted  of  treason  or  misprision  of 
treason  (unless  he  confess  his  guilt  in  open  court)  except  by 
the  testimony  of  two  credible  witnesses. 

The  United  States  statute  on  Treason  is  as  follows:  "Every 
person  owing  allegiance  to  the  United  States  who  levies  war 
against  them,  or  adheres  to  their  enemies,  giving  them  aid  and 
comfort  within  the  United  States  or  elsewhere,  is  guilty  of 
treason." 

The  United  States  law  punishes  treason  with  death;  or,  at 
the  discretion  of  the  court,  imprisonment  at  hard  labor  not  less 
than  five  years  and  a  fine  of  not  less  than  ten  thousand  dollars, 
which  may  be  collected  from  all  his  property,  real  and  personal. 

10 


CHAPTER  III. 
Crimes  Against  the  Person^ 

MURDER,  FIRST  DEGREE. 

WHOEVER,  purposely  and  either  of  deliberate  and 
premeditated  malice,  or  by  means  of  poison,  or  in 
perpetrating,  or  attempting  to  perpetrate,  any  rape, 
arson,  robbery  or  burglary,  kills  another,  is  guilty 
of  murder  in  the  first  degree  and  shall  suffer  death." — O.  Rev. 
Stat.,  6808. 

The  purpose  or  intent  to  kill  another  must  be  present  to 
constitute  murder  in  the  first  degree,  and  it  must  exist  at  the 
time  of  the  assault.  The  purpose  to  kill  must  be  directly  and 
specifically  averred  in  the  indictment. 

Malice. — Malice  is  not  intended  to  mean  general  malevo- 
lence or  unkindness  of  heart;  it  does  not  mean,  in  its  legal 
sense,  enmity  toward  any  particular  individual ;  it  signifies 
rather  the  intent  from  which  flows  any  unlawful  and  injurious 
act;  yet  not  the  intent  to  do  an  injury  to  any  particular  person, 
but  an  evil  design,  a  corrupt  and  wicked  notion  against  some 
one  at  the  time  of  committing  the  crime.  A  intended  to  poison 
B.  He  put  poison  in  an  apple  and  placed  it  in  B's  way.  C, 
who  was  a  friend  of  A,  found  the  apple  and  ate  it  and  died. 
A  is  guilty  of  murdering  C  with  malice  aforethought. 

The  highwayman  who  waylays  and  murders  a  stranger  for 
his  money  has  no  hatred  or  ill-will  toward  him,  but  does  it 
merely  for  money  and  the  law  considers  the  act  in  the  highest 
degree  malicious. 

Premeditation. — To  constitute  first  degree  murder  the  act 
must  have  been  deliberated  upon  and  a  design  formed  to  do  it 


12  THE    LAW   OF   CRIME. 

before  the  act  was  done.  This  is  true,  however  brief  may  be 
the  period  of  deliberation. 

Homicide  by  poisoning  consists  not  only  in  prescribing  or 
furnishing  the  poison,  but  also  in  directing  and  causing  it  to  be 
taken.  But  it  must  be  administered  with  the  intent  to  kill. 
It  is  not  necessary  to  allege  malice  in  a  case  of  homicide  by 
poisoning,  as  the  atrocity  of  the  killing  supplies  the  place  of 
malice;  the  law  implies  malice.  « 

Neither  is  it  necessary  to  allege  malice  in  a  case  of  death 
resulting  from  any  rape,  arson,  robbery  or  burglary. 

MURDER,  SECOND  DEGREE. 

"Whoever,  purposely  and  maliciously,  except  as  provided 
in  the  last  two  sections,  kills  another,  is  guilty  of  murder  in 
the  second  degree,  and  shall  be  imprisoned  in  the  penitentiary 
during  life." — O.  Rev.  Stat.,  6810. 

The  two  sections  referred  to  are  the  one  given  containing 
definition  of  first  degree  murder  and  another  which  makes  a 
killing  that  results  from  maliciously  placing  any  obstruction  on 
a  railroad  track  with  intent  to  endanger  the  passage  of  a  loco- 
motive or  car,  murder. 

The  difference  between  first  and  second  degree  murder  is 
the  lack  of  the  element  of  premeditation  in  the  latter.  The 
same  observations  as  to  purpose  and  malice  apply  here  as  in 
first  degree. 

The  presumption  of  law  in  Ohio  is,  after  the  fact  of  the  kill- 
ing is  proved,  that  it  was  done  purposely  and  with  malice  but 
without  premeditation.  In  other  words,  the  law  presumes  that 
a  proved  killing  is  murder  in  the  second  degree. 

MANSLAUGHTER. 
"Whoever  unlawfully  kills  another,  except  as  provided  in 
the  last  three  sections,  is  guilty  of  manslaughter,  and  shall  be 
imprisoned  in  the  penitentiary  not  more  than  twenty  years  nor 
less  than  one  year." — O.  Rev.  Stat.,  6811. 


ABORTION.  13 

This  crime  lacks  both  the  elements  of  premeditation  and 
malice. 

The  Ohio  definition  follows  the  common  law  in  substance 
and  almost  in  form.-  Malice  is  not  necessary  to  this  crime,  yet 
if  malice  is  present,  but  no  intent  to  kill,  the  crime  will  still  be 
manslaughter.  An  intentional  killing,  without  malice,  may  be 
manslaughter,  if  it  occur  in  a  sudden  quarrel.  If  a  person 
strike  another  with  a  dangerous  weapon,  upon  a  sudden  quar- 
rel, or  beat  him  in  a  cruel  manner,  so  that  death  ensue,  al- 
though he  had  no  intent  to  produce  death,  the  crime  will  be 
manslaughter. 

Minnesota  and  Wisconsin  make  three  degrees  of  murder. 
Alabama,  Arkansas,  California,  Connecticut,  Delaware,  Indiana, 
Iowa,  Maine,  Maryland,  Massachusetts,  Michigan,  Missouri, 
New  Hampshire,  New  Jersey,  Ohio,  Oregon,  Pennsylvania, 
Tennessee,  Texas  and  Virginia  make  two  degrees.  All  the 
States  inflict  the  death  penalty  for  first  degree  murder  except 
Michigan  and  Wisconsin.  At  common  law  there  were  no  de- 
grees of  murder.  It  was  defined  as  lithe  willful  killing  of  any 
subject  whatever,  with  malice  aforethought,  whether  the  per- 
son slain  shall  be  an  Englishman  or  a  foreigner." 

In  some  States  murder  remains  as  at  common  law  and  in 
some  it  has  been  modified  by  statute.  Manslaughter  is  not 
murder.  Malice,  the  essence  of  murder,  is  wanting.  Another 
distinction  at  the  common  law  was  that  there  could  be  no  ac- 
cessories before  the  fact  in  manslaughter,  there  being  no  time 
for  premeditation.  It  has  been  thought  by  some,  too,  that 
there  could  be  no  aiders  or  abettors  in  manslaughter,  but  this 
theory  has  been  overthrown  in  Ohio.  See  definition  of  Abet- 
tor and  Accessory. 

ATTEMPT  TO  PROCURE  AN  ABORTION. 

"Whoever,  with  intent  to  procure  the  miscarriage  of  any 
woman,  prescribes  or  administers  to  her  any  medicine,  drug  or 


14 


THE    LAW    OF    CRIME. 


substance,  whatever,  or  with  like  intent  uses  any  instrument 
or  means  whatever,  unless  such  miscarriage  is  necessary  to 
preserve  her  life,  or  is  advised  by  two  physicians  to  be  neces- 
sary for  that  purpose,  shall,  if  the  woman  either  miscarries  or 
dies  in  consequence  thereof,  be  imprisoned  in  the  penitentiary 
not  more  than  seven  years  nor  less  than  one  year." — O.  Rev, 
Stat.,  6815. 

If  the  drug  is  administered  to  a  woman  pregnant  with  a 
quick  child  with  intent  not  to  kill  the  woman  but  to  produce 
abortion,  and  the  woman  die,  the  offense  can  not  constitute 
murder  in  the  first  degree  in  Ohio.  Neither  can  the  accused 
be  indicted  for  manslaughter.  The  offense  is  "  attempting  to 
procure  abortion." 

RAPE. 

"  Whoever  has  carnal  knowledge  of  a  female  person  forcibly 
and  against  her  will,  or,  being  seventeen  years  of  age,  carnally 
knows  or  abuses  a  female  child  under  ten  years  of  age,  with 
her  consent,  is  guilty  of  rape." — O.  Rev.  Stat.,  6816. 

Punishment  for  Rape. — "A  person  convicted  of  rape  upon 
his  daughter,  or  sister,  or  a  female  child  under  twelve  years  of 
age,  shall  be  imprisoned  in  the  penitentiary  during  life;  and  a 
person  convicted  of  rape  upon  any  other  female  shall  be  im- 
prisoned in  the  penitentiary  not  more  than  twenty  years  nor 
less  than  three  years." — O.  Rev.  Stat.,  68 iy. 

The  law  presumes  that  a  child  under  ten  years  of  age  can 
not  consent  to  an  act  of  carnal  knowledge.  This  presumption 
may  be  rebutted  by  proof  that  she  understood  the  nature  of 
the  act  committed.  The  defendant  may  prove  a  general  bad 
reputation  for  chastity  on  the  part  of  the  prosecutrix,  but  he 
can  not  show  particular  acts  of  unchastity.  Neither  can  she 
be  questioned  on  the  witness  stand  as  to  previous  criminal  in- 
tercourse with  persons  other  than  the  accused  himself. 

The  law  presumes  that  an  infant  under  fourteen  years  of 


ROBBERY.  15 

age  is  incapable  of  committing  rape,  but  this  presumption  ma}- 
be  rebutted  by  proof  that  the  person  has  arrived  at  the  age  of 
puberty. 

There  has  been  much  discussion  in  settling  the  meaning  of 
the  words  "carnal  knowledge."  Some  judges  have  held  that 
penetration  is  alone  sufficient  to  constitute  "  carnal  knowl- 
edge," while  others  have  maintained  that  both  penetration  and 
emission  are  necessary.  The  best  opinion  in  modern  law 
seems  to  be  that  both  penetration  and  emission  are  not  neces- 
sary. 

If  a  woman  is  stupefied  with  liquor  and  in  this  condition 
connection  is  had  with  her  it  is  rape,  even  though  the  liquor 
was  only  given  to  her  to  excite  her. 

If  a  man  leads  a  woman  to  believe  that  she  is  his  wife  and 
has  connection  with  her  under  this  fraud,  it  does  not  amount 
to  rape.     He  may  be  indicted  for  assault. 

A  husband  can  not  commit  rape  upon  his  wife,  but  he  may 
be  guilty  as  an  abettor  or  principal  in  the  second  degree,  as  if 
he  should  hold  her  while  another  had  connection  with  her.  A 
consent  obtained  from  a  woman  by  actual  violence  or  threats  of 
murder,  or  by  administering  stupefying  drugs,  is  not  such  a 
consent  as  the  law  requires — the  offense  will  still  be  rape. 

The  punishment  for  rape  in  England  was  death,  until  a 
Statute  of  Victoria  made  the  extreme  penalty  transportation  for 
life.  In  the  States  the  punishment  varies  from  death  to  long 
imprisonment. 

ROBBERY. 

"  Whoever,  by  force  and  violence,  or  by  putting  in  fear, 
steals  and  takes  from  the  person  of  another  anything  of  value, 
is  guilty  of  robbery,  and  shall  be  imprisoned  in  the  penitentiary 
not  more  than  fifteen  years  nor  less  than  one  year." — O.  Rev. 
Stat.,  6818. 

At  common  law  robbery  is  larceny  from  the  person  accom- 


l6  THE    LAW    OF    CRIME. 

panied  by  violence  or  putting  in  fear.  It  is  not  necessary, 
however,  to  show  that  the  property  taken  was  actually  severed 
from  his  person.  It  is  enough  if  the  thing  stolen  was  in  his 
presence  and  under  his  immediate  control.  But  it  must  be 
shown  that  he  was  laboring  under  such  fear  that  the  property 
was  taken  from  him  or  his  immediate  control  with  intent  to 
steal  or  rob. 

SHOOTING,  ETC.,  WITH  INTENT  TO  KILL. 

"  Whoever  maliciously  shoots,  stabs,  cuts  or  shoots  at  an- 
other person,  with  intent  to  kill,  wound  or  maim  such  person, 
shall  be  imprisoned  in  the  penitentiary  not  more  than  twenty 
years  nor  less  than  one  year." — O.  Rev.  Stat.,  6820. 

If  a  shot  or  a  blow  at  one  strike  another  who  was  known  to 
be  in  such  position  that  his  injury  might  reasonably  be  appre- 
hended as  a  probable  result  of  the  act,  the  law  will  hold  the 
intent  to  have  embraced  the  victim.  Or  if  a  person  shoot  or 
cut  another  under  the  supposition  that  it  is  somebody  else 
against  whom  his  malice  is  inflamed  he  will  be  held  under 
this  statute. 

ASSAULT  WITH  INTENT  TO  KILL,  ETC. 

"  Whoever  assaults  another  with  intent  to  kill,  or  to  com- 
mit rape  or  robbery  upon  the  person  so  assaulted,  shall  be 
imprisoned  in  the  penitentiary  not  more  than  fifteen  years  nor 
less  than  one  year." — O.  Rev.  Stat.,  6820. 

If  the  assault  is  by  shooting,  shooting  at,  cutting  or  stabbing, 
the  charge  should  be  drawn  under  Sec.  6820. 

ASSAULT  AND  BATTERY. 

Whoever  unlawfully  assaults  or  threatens  another,  in  a 
menacing  manner,  or  unlawfully  strikes  or  wounds  another, 
shall  be  fined  not  more  than  two  hundred  dollars,  or  imprisoned 
not  more  than  six  months,  or  both.     This  is  a  misdemeanor. 


LIBEL.  17 

The  assault  is  the  unlawful  attempt  or  offer  with  force  to  do 
bodily  harm  to  another.  The  battery  is  the  unlawful  beating 
or  other  wrongful  physical  violence  inflicted  upon  another 
without  his  consent.  It  is  not  necessary  to  touch  him  with  the 
hands.  He  may  be  hit  with  a  stick  or  by  a  thrown  missile,  or 
spit  in  the  face,  or  touched  in  any  rude  manner  ever  so  lightly 
and  it  will  be  a  battery.  If  A  strike  a  cane  in  the  hands  of  B 
it  is  a  battery  on  B. 

Batteries  may  be  justified :  1.  Asa  mode  of  correcting  a 
child.  2.  As  a  means  of  preserving  the  peace.  3.  As  a  means 
of  self-defense  of  the  person.  4.  As  a  necessary  defense  of  one's 
property. 

If  two  persons  fight  at  fisticuffs  by  agreement,  neither  of 
them  can  be  convicted  of  assault  and  battery. 

KIDNAPING. 

This  offense  is  punished  in  Ohio  by  from  one  to  seven 
years  in  the  penitentiary.  It  consists  in  forcibly  or  fraudulently 
carrying  off  or  decoying  out  of  the  State  any  person ;  or  en- 
ticing females  under  eighteen  years  of  age  away  from  home  for 
purposes  of  prostitution. 

CHILD  STEALING. 

The  child  must  be  under  twelve  years  of  age.  The  punish- 
ment is  from  one  to  twenty  years  in  the  penitentiary. 

LIBEL. 

"  Whoever  writes,  prints  or  publishes  any  false  or  malicious 
libel  of  or  concerning  another,  or  verbally  uses,  utters  or  pub- 
lishes any  false  or  malicious  slander  of  or  concerning  any  female 
of  good  repute,  with  intent  to  cause  it  to  be  believed  that  such 
female  is  unchaste,  shall  be  fined  not  more  than  five  hundred 
dollars  or  imprisoned  not  more  than  six  months,  or  both,  but 
nothing  written  or  printed  shall  be  deemed  a  libel,  unless  there 
is  a  publication  thereof." — O.  Rev.  Stat.,  6828. 


18  THE    LAW   OF   CRIME. 

A  libel  is  that  which  is  written  or  printed,  and  published, 
calculated  to  injure  the  character  of  another  b3r  bringing  him 
into  ridicule,  hatred  or  contempt.  A  more  accurate  definition 
than  this  has  perhaps  been  given  by  the  New  York  Court  of 
Appeak  and  adopted  by  the  Supreme  Courts  of  Pennsylvania 
and  Ohio.     It  is  as  follows: 

"A  libel  is  a  censorious  or  ridiculous  writing,  picture  or 
sign,  made  with  a  mischievous  and  malicious  intent  toward 
government,  magistrates  or  individuals." 

It  does  not  necessarily  charge  the  plaintiff  with  crime. 
Wanton  and  malicious  ridicule,  a  tendency  to  degrade  the 
plaintiff  and  lessen  his  standing  in  society,  will  sustain  an  action 
for  libel. 

SLANDER. 

Slander  is  falsely  and  maliciously,  orally  charging  another 
with  anything  involving  moral  turpitude  which,  if  true,  will 
subject  him  to  infamous  punishment,  or  that  tends  to  exclude 
him  from  society,  or  to  prejudice  him  in  his  office,  profession, 
trade  or  business.  The  remedy  for  slander  is  a  suit  for  damages 
and  recovery  may  be  had  without  proof  of  actual  damage. 

Any  charge  that  would  support  a  suit  for  slander,  if  the 
words  were  merely  spoken,  would  sustain  a  suit  for  libel  if  the 
words  were  written  or  printed  and  published.  Libel  is  much 
broader  and  more  comprehensive  because  the  words  are  em- 
bodied in  a  more  enduring  form  and  are  promulgated  with 
greater  deliberation  and  malignity.  Words  of  ridicule  or  con- 
tempt which  only  wound  a  man's  feelings  will  constitute  libel  if 
written  and  published,  but  would  not  constitute  slander  if  spoken. 

Slander  is  neither  a  crime  nor  a  misdemeanor.  It  i£  a  tort. 
It  is  mentioned  in  this  connection,  because  it  is  so  closely  allied 
to  libel. 

BLACKMAILING. 

This  crime,  in  brief,  consists  in  demanding  with  menaces  or 


BLACKMAILING.  1 9 

threats,  either  orally  or  in  writing,  something  of  value  which  is 
not  owed  by  the  threatened  party;  or  accusing  in  any  way,  or 
threatening  to  accuse,  any  person  of  a  crime  punishable  by 
law,  or  of  any  immoral  conduct,  which,  if  true,  would  tend  to 
degrade  such  person,  with  intent  to  extort  or  gain  from  such 
person  any  chattel,  money  or  valuable  security;  or  with  intent 
to  compel  the  person  threatened  to  do  any  act  against  his  will. 

The  punishment  in  Ohio  is  from  one  to  five  years  in  the 
penitentiary. 

The  frequency  and  boldness  with  which  this  crime  is  com- 
mitted, especially  in  large  cities,  is  appalling.  There  are  in 
New  York,  Boston,  Philadelphia,  Cincinnati,  Chicago  and  every 
large  city,  hundreds  of  professional  blackmailers.  A  majority 
of  them  are  women,  but  many  have  a  man  working  with  them. 
A  trap  is  laid  for  a  prominent  business  man,  he  is  caught  in  a 
compromising  situation,  and  although  he  may  be  entirely  inno- 
cent of  any  wrong,  still  circumstances  are  against  him,  and  fear- 
ing the  effect  upon  his  business,  or  social  standing,  or  family,  of 
the  publication  of  the  circumstances,  he  yields  to  the  opportun- 
ity offered  to  keep  it  quiet  "for  a  consideration."  Once  having 
paid  hush  money  he  is  forever  lost.  He  dare  not  refuse  subse- 
quent demands  for  money,  for  the  first  payment  was  a  vir- 
tual acknowledgment  of  his  guilt.  He  dare  not  complain  to 
the  authorities,  for  that  would  result  in  bringing  the  whole 
matter  to  public  view.  So  he  is  bled  year  after  year,  while  the 
villainous  blackmailer  enjoys  immunity  from  punishment  and 
lives  in  luxury  from  the  substance  plundered  often  from  worthy 
mothers  and  wives  and  crying  babes.  A  person  from  whom 
blackmail  is  levied  is  truly  accursed.  He  dare  not  use  the 
remedy  provided  by  the  law. 


CHAPTER  IV. 

Offenses  Against  Property. 

ARSON. 

WHOEVER  maliciously  burns,  or  attempts  to  burn, 
any  dwelling-house,  kitchen,  smoke-house,  shop, 
barn,  etc.,  or  any  other  building,  the  property  of 
another  person,  of  the  value  of  fifty  dollars,  or 
any  church,  court-house,  school-house,  jail,  etc.,  or  other  pub- 
lic building,  or  any  ship  or  other  water-craft  of  the  value  of 
fifty  dollars,  or  any  toll  bridge  wholly  or  partly  in  the  State, 
or  any  other  bridge  of  the  value  of  fifty  dollars  within  the 
State,  shall  be  imprisoned  in  the  penitentiary  not  more  than 
twenty  years. 

Whoever  maliciously  burns  or  sets  fire  to  any  dwelling- 
house,  etc.,  of  the  value  of  fifty  dollars,  being  his  own  property, 
and  insured  against  loss  or  damage  by  fire,  with  intent  to  prej- 
udice the  insurer,  shall  be  imprisoned  in  the  penitentiary  not 
more  than  twenty  years. 

Arson  is  the  malicious  burning  of  the  house  of  another. 
But  house  includes  all  kinds  of  buildings,  and  the  Ohio  Statute 
makes  it  cover  bridges  as  well. 

Burning  the  personal  property  of  another  maliciously,  as 
hay,  wheat,  grain  of  any  kind,  fence,  boards,  timber,  etc.,  is 
punished  by  imprisonment  in  the  penitentiary  for  from  one  to 
three  years,  if  the  value  of  the  chattel  burned  is  thirty-five  dol- 
lars or  more.  If  under  that  sum,  a  fine  of  from  five  to  one 
hundred  dollars  and  not  over  thirty  days'  imprisonment,  or  both, 
is  imposed. 


BURGLARY.  21 

BURGLARY. 

Whoever,  in  the  night  season,  maliciously  and  forcibly 
breaks  and  enters  any  dwelling-house,  kitchen,  etc.,  church, 
school-house,  barn,  railroad  car,  etc.,  with  intent  to  commit  a 
felony  or  to  steal  property  of  any  value,  shall  be  imprisoned  in 
the  penitentiary  not  more  than  ten  years  nor  less  than  one  year. 

To  constitute  burglary  the  breaking  and  entering  must  take 
place  in  the  night  time,  and  the  indictment  must  distinctly 
charge  that  it  was  done  in  the  night  time.  See  "Night"  in 
Definitions.   . 

No  great  amount  of  force  is  necessary.  The  turning  of  a 
knob  of  a  door  that  is  closed  but  not  locked,  and  pushing  it 
open,  however  easily  or  gently,  will  be  a  forcible  entry.  Push- 
ing open  a  closed  transom  that  was  not  fastened  is  sufficient  to 
constitute  a  breaking  under  the  Ohio  Statute.  But  if  a  door  is 
left  partly  open  or  a  window  partly  raised  and  the  defendant 
enters  by  pushing  open  the  partly  open  door  or  by  further 
raising  the  window  that  is  already  a  little  up,  it  will  not  consti- 
tute burglary.  The  act  of  leaving  the  windows  and  doors  in 
this  condition  is  considered  such  negligence  or  folly  on  the  part 
of  the  owner  of  the  building,  as  to  induce  or  tempt  a  stranger 
to  enter. 

Maliciously  entering  in  the  day-time  or  night  season  any 
dwelling-house,  etc.,  as  above,  and  attempting  to  commit  a 
felony,  is  punished  by  imprisonment  in  the  penitentiary  for 
from  one  to  two  years. 

Maliciously  breaking  and  entering  any  dwelling,  etc.,  as 
above,  with  intent  to  steal,  is  punished  by  a  fine  not  exceeding 
three  hundred  dollars  and  imprisonment  not  more  than  sixty 
days. 

Unlawfully  breaking  and  entering  any  mansion,  house,  etc., 
as  above,  in  the  night  season,  and  committing  or  attempting  to 
commit  any  personal  violence,  is  punished  by  a  fine  not  ex- 


22  THE    LAW    OF   CRIME. 

ceeding  three   hundred   dollars    and    imprisonment   not   over 
thirty  days. 

If  in  the  day-time,  the  punishment  is  a  fine  of  not  over  one 
hundred  dollars  and  imprisonment  not  over  twenty  days. 

EMBEZZLEMENT. 

The  statutes  of  Ohio  distinguish  in  the  punishment  of  this 
crime  between  embezzlement  of  public  funds  by  public  officers 
and  embezzlements  by  agents  and  employes  of  private  parties. 
The  latter  is  punished  exactly  as  a  larceny  of  the  same  value. 
The  statute  is  very  full  and  explicit  in  regard  to  embezzle- 
ments by  public  officers,  including  every  species  of  valuable 
thing,  and  covering  every  possible  form  of  conversion  to  per- 
sonal use.  The  punishment  is  imprisonment  in  the  peniten- 
tiary from  one  to  twenty-one  years,  and  a  fine  in  double  the 
amount  of  money  or  other  property  embezzled,  which  fine 
operates  as  a  judgment  at  law  on  all  of  the  estate  of  the  party 
sentenced,  and  may  be  enforced  to  collection  by  execution  or 
other  process,  for  the  use  only  of  the  owner  of  the  property  so 
embezzled.  The  public  officer,  to  be  convicted  under  this 
statute,  must  be  one  "charged  with  the  collection,  receipt, 
safe-keeping,  transfer  or  disbursement  of  the  public  money,  or 
some  part  thereof,  belonging  to  the  State-,  county,  township, 
municipal  corporation  or  board  of  education." 

A  county  auditor  does  not  come  under  this  section,  as  he 
is  not  charged  with  the  possession  and  custody  of  money  with- 
in the  meaning  of  the  statute. 

As  stated  above,  if  the  embezzlement  is  by  a  private  agent 
or  employe,  the  offense  is  punished  the  same  as  a  larceny  of 
the  same  amount. 

REMOVING  MORTGAGED  PERSONAL  PROPERTY. 

If  a  person  mortgages  personal  property,  retaining  posses- 
sion of  it,  and  removes  any  of  it  out  of  the  county  without  the 


LARCENY.  23 

consent  of  the  mortgagee,  or  secretes  or  sells  it,  or  converts  it 
to  his  own  use  with  intent  to  defraud,  he  is  fined,  in  this  State, 
not  more  than  five  hundred  dollars,  or  imprisoned  not  more 
than  three  months,  or  both. 

Killing,  or  injuring,  or  poisoning  domestic  animals  belong- 
ing to  another,  or  taking  and  using  without  leave,  is  punished 
by  fine,  or  imprisonment,  or  both. 

LARCEXY. 

"Whoever  steals  anything  of  value  is  guilty  of  larceny  and 
shall,  if  the  value  of  the  thing  stolen  is  thirty-five  dollars  or 
more,  be  imprisoned  in  the  penitentiary  not  more  than  seven 
years  or  less  than  one  year,  or,  if  the  value  is  less  than  that 
sum,  be  fined  not  more  than  two  hundred  dollars,  or  impris- 
oned not  more  than  thirty  days,  or  both." — O.  Rev.  Stat.,  6856. 

Some  fine  points  arise  in  determining  what  constitutes  a 
larceny.  The  felony  lies  in  the  very  first  act  of  removing  the 
article,  with  felonious  intent.  If  the  thief,  for  an  instant,  ob- 
tain entire  and  absolute  possession  of  the  thing,  the  larceny  is 
committed,  although  he  may  not  subsequently  remove  it  from 
the  premises.  A  thief  was  on  trial  fof  stealing  money  from  a 
drawer  and  the  judge  charged  the  jury  that  "If  he  had  ac- 
tually taken  the  money  into  his  hand,  and  lifted  it  from  the 
place  where  the  owner  had  placed  it,  so  as  to  entirely  sever  it 
from  the  spot  where  it  was  placed,  with  the  intention  of  steal- 
ing it,  he  would  be  guilty  of  larceny,  though  he  may  have 
dropped  it  into  the  place  in  which  it  was  lying,  upon  being 
discovered,  and  never  have  taken  it  out  of  the  drawer."  Held 
by  the  Supreme  Court  in  Eckels  vs.  State,  20  Ohio  State,  608, 
that  this  charge  is  correct. 

Another  difficult  point  arises  in  connection  with  lost  prop- 
erty. If  the  finder,  at  the  time  of  finding  it,  has  reasonable 
ground  to  believe,  from  the  nature  of  the  property  or  the  cir- 
cumstances under  which  he  found  it,  that,  if  he  does  not  con- 


24  THE   LAW   OF   CRIME. 

ceal  but  deals  honestly  with  it,  the  owner  will  appear  or  be  as- 
certained, he  will  be  guilty  of  larceny,  if,  at  the  time  of  taking 
the  property  into  his  possession,  he  intends  to  steal  it.  See 
"Law  of  Finding." 

A  partner  can  not  steal  partnership  propert}-. 

Carrying  another's  property  away  and  concealing  it,  and 
holding  it  for  a  reward  to  be  offered  for  its  return,  is  larceny  in 
this  State. 

A  thief  who  steals  property  in  one  county  and  is  found 
with  the  property  in  another  county,  may  be  indicted  and  con- 
victed in  either  county,  but  not  in  both. 

Horse  Steali?ig. — This  form  of  larceny  is  covered  by  a  spe- 
cial statute  in  Ohio,  and  also  in  many  other  States.  The  stat- 
ute includes  not  only  the  thief  but  any  one  who  receives  or 
buys  a  stolen  horse  knowing  it  to  be  such,  or  knowingly  con- 
ceals a  horse  thief,  and  prescribes  a  punishment  of  from  one  to 
fifteen  years  in  the  penitentiary.  Receivers  of  stolen  property, 
knowing  it  to  be  such,  are  deemed  guilty  of  larceny  and  pun- 
ished accordingly. 

Stealing,  destroying  or  secreting  a  will,  either  before  or 
after  the  death  of  the  testator,  is  punished  by  from  one  to  ten 
years  imprisonment  in  the  penitentiary. 

Maliciously  obstructing  a  railroad,  or  displacing  or  injuring 
anything  pertaining  thereto,  with  intent  to  endanger  the  pas- 
sage of  any  locomotive  or  car,  is  punished  by  from  one  to 
twenty  years  in  the  penitentiary. 

MALICIOUS  DESTRUCTION  OF  PROPERTY. 

The  malicious  destruction  of  property  not  one's  own,  to  the 
value  of  one  hundred  dollars  or  more,  is  punished  by  from  one 
to  seven  years  in  the  penitentiary;  if  less  than  that  sum  by  a 
fine  of  not  more  than  five  hundred  dollars,  or  imprisonment 
not  more  than  thirty  days,  or  both. 


MALICIOUS   DESTRUCTION   OF    PROPERTY.  25 

A  special  statute  covers  malicious  destruction  of  trees  and 
crops:  thirty-five  dollars  or  over,  one  to  three  years  in  the  pen- 
itentiary; under  that  from  five  to  one  hundred  and  fifty  dollars 
fine,  or  one  to  thirty  days'  imprisonment.  There  are  other 
minor  offenses  against  property,  most  of  which  come  under  the 
head  of  trespass,  and  are  punished  by  various  fines  or  impris- 
onments. 


CHAPTER  V. 

Offenses  Against  Public  Peace. 

DUELING. 

PRINCIPALS  and  seconds  in  duels,  also  he  who  challenges 
or  accepts  a  challenge  to  fight  a  duel,  or  he  who  know- 
ingly is  a  bearer  of  such  challenge,  all  are  punished  by 
from  one  to  ten  years  in  the  penitentiary. 

PRIZE   FIGHTING. 

A  principal  in  a  fight  is  punished  by  from  one  to  ten  years 
in  the  penitentiary.  Those  who  aid  or  assist  or  attend  a  prize 
fight,  including  backer,  trainer,  second,  umpire  or  referee,  as- 
sistant or  reporter,  are  fined  from  fifty  to  five  hundred  dollars 
and  imprisoned  from  ten  days  to  three  months. 

In  many  other  States  the  penalty  is  much  lighter. 

CARRYING  CONCEALED  WEAPONS. 

"Whoever  carries  any  pistol,  bowie  knife,  dirk,  or  other 
dangerous  weapon,  concealed  on  or  about  his  person,  shall  be 
fined  not  more  than  two  hundred  dollars,  or  imprisoned  not 
more  than  thirty  days,  and  for  a  second  offense,  fined  not  more 
than  five  hundred  dollars,  or  imprisoned  not  more  than  three 
months,  or  both." — O.  Rev.  Stat.,  6892. 

It  will  be  observed  that  this  statute  reads  "whoever  carries." 
No  one  is  excepted.  A  subsequent  statute,  however,  Section 
7317,  Rev.  Stat.,  says: 

"Upon  the  trial  of  an  indictment  for  carrying  a  concealed 
weapon,  the  jury  shall  acquit  the  defendant  if  it  be  made  to  ap- 
pear that  he  was  at  the  time  engaged  in  any  lawful  business, 
calling,  or  employment,  and  that  the  circumstances  in  which 

26 


.  RIOT.  27 

he  was  placed  were  such  as  to  justify  a  prudent  man  in  carry- 
ing the  weapon  for  the  defense  6f  his  person,  property,  or 
family." 

RIOT. 

When  three  or  more  persons  assemble  together  to  do  an 
unlawful  act,  or,  being  assembled,  do  an  unlawful  act  as  afore- 
said, they  are  guilty  of  riot,  and  shall  each  be  fined  not  more 
than  five  hundred  dollars,  or  imprisoned  not  more  than  thirty 
days,  or  both,  and  shall  give  security  for  good  behavior  and  to 
keep  the  peace  for  one  year. 

It  will  be  observed  that  three  or  more  persons  are  necessary 
to  constitute  a  riot.  The  necessary  elements  of  riot  are :  1 .  An 
unlawful  assembling,  or  if  lawfully  assembled,  then  an  unlaw- 
ful and  riotous  agreement,  then  and  there  to  do  an  unlawful 
act.  A  sudden  quarrel  or  fight  in  a  lawful  assembly,  as  a  thea- 
ter or  church,  is  not  a  riot,  but  an  affray,  but  if  they  form  into 
parties,  upon  a  dispute  arising,  with  promises  of  mutual  assist- 
ance either  express  or  implied,  then  the  lawful  assembly  is 
turned  into  a  riot.  2.  Actual  violence  and  force  must  be  proved, 
or  such  conduct  as  is  calcinated  to  strike  terror  to  the  public 
mind.  3.  The  parties  must  assemble  of  their  own  authority. 
If  they  are  assembled  by  authority  of  the  law  they  may  use 
any  necessary  force  to  enforce  their  mandate.  4.  To  convict, 
it  must  be  proved  that  the  defendants  were  present  and  actually 
participated  in  the  disturbance.  The  law  of  riot  is  practically 
the  same  in  all  the  States. 

Willfully  disturbing  any  lawful  meeting  is  punished  in  Ohio 
by  fine  and  imprisonment. 


CHAPTER  VI. 

Offenses  Against  Public  Justice. 

PERJURY. 

WHOEVER,  either  verbally  or  in  writing,  on  oath  law- 
fully administered,  willfully  and  corruptly  states  a 
falsehood,  as  to  any  material  matter,  in  a  proceeding 
before  any  court,  tribunal,  or  officer  created  by  law, 
or  in  any  matter  in  relation  to  which  an  oath  is  authorized  by 
law,  is  guilty  of  perjury,  and  shall  be  imprisoned  in  the  peni- 
tentiary not  more  than  ten  years,  nor  less  than  three  years." — 
O.  Rev.  Stat.,  6897. 

An  incompetent  witness  may  be  lawfully  convicted  of  per- 
jury if  the  court  at  which  he  testifies  falsely  has  jurisdiction  of 
the  subject  matter  and  the  parties. 

If  the  oath  is  unlawfully  administered,  or  by  one  having  no 
authority  to  administer  oaths,  there  can  be  no  perjury. 

The  false  testimony  must  be  as  to  matter  material  to  the  is- 
sue. It  was  testified  in  an  action  of  trespass  for  assault  and 
battery  that  it  was  committed  "near  the  plaintiffs  door,  on  a 
mill-road  running  by  there."  An  attempt  to  make  perjury  on 
the  ground  that  "there  was  no  mill-road  within  twenty  yards," 
failed,  as  it  was  held  the  place  was  not  material  and  the  word 
near  might  reasonably  mean  twenty  yards.  False  testimony 
before  a  marriage  license  clerk  of  the  Probate  Court  is  perjury. 

SUBORNATION  OF  PERJURY. 

This  is  the  act  of  procuring  or  persuading  another  person 
to  commit  perjury.  Under  the  act  relating  to  aiders  and  abet- 
tors it  is  punishable  in  Ohio  the  same  as  perjury. 

28 


BRIBERY  29 

It  is  necessary  to  this  crime  that  the  defendant  have  a 
knowledge  or  belief  not  only  that  the  witness  will  swear  to 
what  is  untrue  but  that  he  will  do  so  corruptly  and  knowingly. 
There  must  be  a  clear  preponderance  of  evidence  in  favor  of 
the  prosecution  in  order  to  justify  a  jury  in  convicting  of  per- 
jury. The  mere  belief  of  a  witness  will  not  be  sufficient  to 
convict.  There  must  be  more  evidence  than  the  testimony  of 
one  reliable  witness  to  establish  perjury,  although  the  corro- 
borative testimony  need  not  be  of  sufficient  force  to  equal  the 
positive  testimony  of  another  witness,  nor  such  as  would  re- 
quire a  jury  to  convict  in  a  case  in  which  one  witness  is  enough, 
but  as  before  stated  there  must  be  a  clear  preponderance  of  the 
evidence  in  favor  of  the  prosecution. 

If  the  defendant  was  greatly  intoxicated  at  the  time  of  the 
transaction,  concerning  which  he  is  charged  with  swearing 
falsely,  it  is  proper  to  submit  this  fact  to  the  jury  to  aid  them 
in  determining  whether  the  accused  knowmgly  testified  falsely. 

FALSELY  PERSONATING  ANOTHER. 

Falsely  personating  another  before  any  court  of  record  or 
judge  thereof,  or  justice  of  the  peace,  or^officer  authorized  to 
acknowledge  deeds,  grant  marriage  licenses,  etc.,  with  intent  to 
defraud,  is  punished  by  from  one  to  six  years  in  the  penitentiary. 

BRIBING   JURORS. 

Whoever  bribes  a  juror,  referee,  or  appraisor,  or  any  juror, 
referee,  appraisor,  etc.,  who  accepts  a  bribe  to  influence  his 
decision,  shall  be  fined  not  more  than  five  hundred  dollars,  or 
imprisoned  not  more  than  sixty  days,  or  both. 

BRIBING  OFFICERS. 

Whoever  corruptly  gives,  promises,  or  offers  to  any  public 
officer  any  valuable  thing  or  service  to  influence  him  in  his  of- 
ficial duty,  or  any  public  officer  soliciting  or  accepting  any 
valuable  thing  to  influence  him,  shall  be  imprisoned  in  the 


30  THE    LAW    OF    CRIME. 

penitentiary  not  more  than  five  years,  or  fined  not  more  than 
five  hundred  dollars,  or  both.  A  person  convicted  of  this  crime 
is  disqualified  from  holding  any  public  office  or  appointment 
under  the  State. 

Compounding  Felonies  is  a  misdemeanor  that  is  punished  in 
Ohio  by  a  fine  ranging  from  twenty-five  to  three  hundred  dol- 
lars, or  imprisonment  for  from  ten  to  ninety  days,  or  both.  The 
crime  consists  in  demanding  or  receiving  any  money,  or  thing 
of  value,  for  compounding,  or  abandoning,  or  agreeing  to  aban- 
don any  prosecution  threatened  or  commenced  for  any  crime  or 
misdemeanor.  This  law  does  not  prevent  any  owner  or  agent 
from  receiving  back  money  or  property  stolen  or  embezzled 
from  him. 

Aiding  an  Escape  of  a  prisoner  confined  for  felony  is  pun- 
ished by  from  two  to  three  years  in  the  penitentiary ;  if  confined 
for  misdemeanor,  by  a  fine  of  from  fifty  to  five  hundred  dollars, 
or  not  more  than  three  months  imprisonment,  or  both. 

EXTORTION. 

Any  officer  under  the  constitution  or  laws  of  the  State,  who 
knowingly  demands,  .asks  or  receives  any  fee  or  reward,  other 
than  allowed  by  law,  to  do  his  official  duty,  or  knowingly 
charges  or  receives  any  more  or  greater  fees  than  allowed  by 
law  for  such  official  duty,  or  permits  others  in  his  employ  to 
do  so,  shall  be  fined  not  more  than  two  hundred  dollars  or  im- 
prisoned not  more  than  twenty  days,  or  both. 

An  officer  convicted  of  this  offense  forfeits  his  office,  and  is, 
for  seven  years,  incapable  of  holding  any  office  of  honor,  profit 
or  trust  in  the  State. 

A  notary  who,  knowingly,  does  any  act  as  notary  after  his 
term  has  expired,  shall  be  fined  not  more  than  five  hundred 
dollars. 


CHAPTER  VII. 

Offenses  Against  Public  Health. 

NUISANCES. 

SEE  definition.  Nuisances  are  public  and  private.  If  the 
thing  complained  of  affects  only  one  person  or  family  it 
is  a  private  nuisance;  if  it  is  an  offense  to  the  whole 
neighborhood  it  is  public. 
The  fine  in  Ohio  for  keeping  a  nuisance  is  five  hundred 
dollars  or  less.  The  statute  is  especially  directed  to  those 
nuisances  which  are  injurious  to  public  health,  as  buildings, 
trades  or  filth  occasioning  noxious  exhalations  or  noisome 
smells,  or  impeded  water-ways,  etc. 

Throwing  dirt  into  rivers,  lakes  and  ponds,  obstructing 
ditches  or  drains  and  befouling  wells  or  springs  are  all  pun- 
ished by  fine  or  imprisonment 

Selling  diseased,  stale,   unwholesome   or   corrupt   meat,   or 
provisions  is  punished  by  fine  and  imprisonment. 


~i 


CHAPTER  VIII. 

Offenses  Against  Public  Policy. 

PUBLISHING  A  LOTTERY. 

PUNISHED  by  a  fine  of  one  hundred  dollars. 
Selling  Lottery  Tickets. —  Fine  not  over  five  hundred 
dollars,  or  imprisoned  not  more  than  six  months,  or  both. 
Promoting  Lotteries. — The  owner,  agent,  etc.,  or  one 
who  sets  on  foot,  carries  on,  backs,  etc.,  is  fined  from  fifty  to 
five  hundred  dollars  and  imprisoned  from  ten  to  ninety  days. 

GAMBLING. 

Keeping  or  renting  a  room  for  gambling  is  punished  by 
fine  of  thirty  to  five  hundred  dollars,  or  imprisoned  from  ten 
to  thirty  days,  or  both. 

Common  gamblers,  upon  conviction,  are  subject  to  a  fine 
of  from  fifty  to  five  hundred  dollars,  and  ten  to  ninety  days' 
imprisonment. 

Betting  on  an  election  is  punished  by  a  fine  of  from  five  to 
five  hundred  dollars,  or  ten  days'  to  six  months'  imprisonment. 
Prosecutions  must  be  commenced  within  a  year.  This  statute 
is  duplicated  in  most  of  the  States  and  is  openly  and  flagrantly 
violated  in  all. 

SELLING  INTOXICANTS  TO  A  MINOR. 

This  is  punishable  by  fine,  or  imprisonment,  or  both. 

CRUELTY  TO  ANIMALS. 

The  States  nearly  all  punish  cruelty  to  animals,  and  the 
Ohio  statute  is  very  explicit.  The  punishment  is  a  fine  of 
from  five  to  two  hundred  dollars,  or  imprisonment  not  more 
than  sixty  days,  or  both.     In  the  large  cities  the  law  is  quite 

32 


GAME    LAWS.  33 

rigidly  enforced  by  societies  organized  for  the  protection  of 
animals. 

GAME  LAWS. 

Nearly  all  the  States  protect  the  game  whose  habitation  is 
in  their  territory.  Each  one  should  familiarize  himself  with 
the  game  laws  of  his  own  State.  'They  are  essentially  differ- 
ent in  the  different  States,  because  game  that  i$  found  in  one 
may  not  be  found  in  another. 

State  officers  or  agents  are  not  permitted  to  have  any  inter- 
est in  any  contract,  directly  or  indirectly,  for  the  purchase  of 
any  property  for  the  use  of  the  State.  Penalty  is  imprison- 
ment in  penitentiary  for  from  one  to  ten  years. 

Superintendents  of  Public  Works  or  others  employed  law- 
fully to  superintend  the  erection,  etc.,  of  any  public  building, 
or  to  make  any  plan  or  specification  therefor,  or  estimate  the 
cost  thereof,  who  knowingly  defraud  the  State  in  respect  to 
the  work  to  be  done,  shall  be  imprisoned  for  from  one  to  five 
years. 

Harboring  a  thief,  or  robber,  knowing  him  to  be  such,  is 
punished  by  from  one  to  seven  years  in  the  penitentiary. 

MISCEGENATION. 

Intermarrying  or  carnal  intercourse  between  a  pure  white 
and  a  negro,  or  person  having  a  visible  admixture  of  African 
blood,  subjects  both  to  a  fine  of  not  more  than  one  hundred 
dollars,  or  imprisonment  not  more  than  three  months,  or  both. 
And  the  same  punishment  is  meted  out  to  the  probate  judge 
who  issues  a  license  to  such  persons  to  marry,  and  to  the  min- 
ister or  officer  who  solemnizes  such  marriage. 

VAGRANTS — TRAMPS. 

A  vagrant  in  Ohio   is  a  male   person  physically  able  to 
work,  who  has  not  made  reasonable  effort  to  secure  employ- 
ment, or  who  has  refused  to  labor  at  reasonable  prices,  and  is 
3 


34  THE   LAW   OP   CRIME. 

found  begging  or  without  any  settled  home.  Vagrancy  is  sub- 
ject to  a  fine  not  exceeding  fifty  dollars  and  hard  labor  in  the 
jail  until  the  fine  is  paid,  at  the  rate  of  seventy-five  cents  a  day. 
A  tramp  is  a  male  person,  not  blind,  who  is  found  begging  and 
asking  subsistence  or  charity  outside  the  county  in  which  he 
usually  lives.  If  a  tramp  enter  a  dwelling-house  or  yard  with- 
out the  permission  of  the  owner  or  occupant,  or  is  found  carry- 
ing any  fire-arms  or  dangerous  weapon,  or  does  or  threatens 
any  injury  to  the  person  or  property  of  another,  he  shall  be 
imprisoned  in  the  penitentiary  for  from  one  to  three  years. 


CHAPTER  IX. 
Offenses  Againsl  Chastity  and  Morality. 

BIGAMY. 

SEE  definition.  Punishment  in  Ohio  is  one  to  seven  years 
in  the  penitentiary.  The  statute  does  not  apply  to  any 
person  whose  husband  or  wife  has  been  absent  continu- 
ally for  five  successive  years  next  preceding  such  mar- 
riage without  being  known  to  such  person  to  be  living  within 
that  time.  Open  and  mutual  consent  to  a  present  marriage,  and 
subsequent  cohabiting  as  man  and  wife,  constitutes  a  legal  mar- 
riage in  this  State  and  most  others,  and  persons  married  in  this 
way,  or  by  a  person  who  had  no  authority  to  solemnize  mar- 
riages, if  they  afterward  cohabited  as  man  and  wife,  have  been 
convicted  of  bigamy  for  a  second  marriage  while  the  first  hus- 
band or  wife  was  living. 

INCEST. 

"Persons  nearer  of  kin  by  consanguinity  or  affinity  than 
cousins,  having  knowledge  of  their  relationship,  who  commit 
adultery  or  fornication  together,  shall  be  imprisoned  in  the  peni- 
tentiary not  more  than  ten  years  nor  less  than  one  year." — O. 
Rev.  Stat.,  70 ig. 

Consanguinity  means  relationship  by  blood;  affinity  means 
relationship  by  marriage. 

I'jiiissio  Seminis  is  an  essential  ingredient  in  the  crime  of 
incest.  The  relation  of  stepfather  and  stepdaughter  is  within 
the  statute ;  but  this  relationship  is  presumed  to  cease  after  the 
termination  of  the  marriage  relation  of  the  stepfather  and  the 
stepdaughter's  mother.     In  other  words,  cohabitation  of  a  step- 

35 


36  THE    LAW   OF   CRIME. 

father  with  his  stepdaughter  would  not  be  incest  if  her  mother 
was  either  dead  or  divorced  from  her  stepfather. 

"A  male  person  over  seventeen  years  of  age  who  has  carnal 
knowledge  of  an  insane  woman,  not  his  wife,  knowing  her  to 
be  insane,  shall  be  imprisoned  in  the  penitentiary  not  more 
than  ten  nor  less  than  three  years." — O.  Rev.  Stat.,  7021. 

ADULTERY  AND  FORNICATION. 

"Whoever  cohabits  with  another  in  a  state  of  adultery  or 
fornication,  shall  be  fined  not  more  than  two  hundred  dollars, 
and  imprisoned  not  more  than  three  months." — O.  Rev.  Stat., 
7020. 

It  is  not  necessary  that  a  woman  with  whom  a  man  lives 
and  cohabits  should  be  a  married  woman  in  order  to  render 
him  guilty  of  deserting  his  wife  and  living  in  a  state  of  adultery 
with  her.  He  is  guilty  of  adultery,  and  she,  being  unmarried, 
of  fornication. 

Seduction  under  promise  of  marriage  is  punished  by  impris- 
onment in  the  penitentiary  not  more  than  three  years,  or  in  the 
county  jail  not  more  than  six  months. 

The  male  must  be  over  eighteen  and  the  female  under 
eighteen  years  of  age,  and  she  must  be  of  good  repute  for 
chastity. 

The  defendant  can  not  be  allowed  to  prove  specific  acts  of 
illicit  intercourse  by  the  prosecutrix  with  other  persons ;  he  can 
only  attack  her  character  by  proof  of  her  general  reputation. 
The  defendant  is  allowed  to  give  in  evidence  previous  acts  of 
carnal  intercourse  by  the  prosecutrix  with  himself,  not  for  the 
purpose  of  impeaching  her  character  for  chastity,  but  to  show 
that  the  criminal  act  charged  was  not  committed  under  a  prom- 
ise of  marriage. 

A  house  of  ill-fame  is  made  a  public  nuisance  by  statute  in 
Ohio. 


OBSCENE    LITERATURE.  37 

OBSCENE  LITERATURE. 

Whoever  sells  or  gives  away,  or  has  in  his  possession  any 
obscene,  lewd,  or  indecent,  or  lascivious  book,  picture,  model, 
etc.,  or  instrument  or  medicine  for  procuring  abortion  or  pre- 
venting conception ;  or  advertises  the  same  for  sale ;  or  writes 
or  prints,  etc.,  or  gives  information  where  they  can  be  obtained, 
shall  be  fined  not  more  than  one  thousand  dollars,  nor  less  than 
fifty  dollars,  or  imprisoned  not  more  than  one  year,  or  both. 

Sending  any  such  literature  by  mail  or  carrying  or  convey- 
ing it,  knowing  its  character,  is  punished  the  same  as  above. 

Advertising  secret  drugs  for  the  use  of  females,  or  caution- 
ing females  against  their  use  when  in  a  state  of  pregnancy,  or 
publishing  an  account  of  any  drug,  or  instrument  for  preventing 
conception  or  procuring  *abortion  or  miscarriage  is  punished  as 
above. 

GRAVE  ROBBING. 

This  crime  is  punished  by  from  one  to  five  years  in  the 
penitentiary.  Any  one  who  assists  in  any  surgical  demonstra- 
tion or  anatomical  dissection  of  any  corpse  so  stolen,  knowing 
it  to  be  so  obtained,  shall  be  fined  from  one  hundred  to  one 
thousand  dollars,  or  imprisoned  from  six  months  to  one  year, 
or  both. 


CHAPTER  X. 

Offenses  Against  the  Right  of  Suffrage. 

BRIBERY. 

OFFERING  or  receiving  bribes  for  votes  at  any  election 
held  under  the  laws  of  the  State  relating  to  primary 
elections,  is  punished  by  a  fine  of  from  fifty  to  two 
hundred  dollars,  or  imprisonment  for  from  one  to  six 
months. 

Bribing,  intimidating  or  corrupting  any  elector  at  a  public 
election  authorized  by  the  laws  of  the*State,  by  giving  or  offer- 
ing anything,  or  threatening  any  force  to  influence  his  vote,  is 
punished  by  a  fine  of  not  over  five  hundred  dollars,  and  impris- 
onment not  over  six  months;  and  if  it  is  a  candidate  and  he 
was  elected  at  such  election,  he  may  upon  conviction  be  re- 
moved from  the  office  by  the  court. 

Voting,  not  being  a  resident  of  the  State,  or  voting  more 
than  once  at  the  same  election,  is  punished  by  from  one  to  five 
years  in  the  penitentiary. 

Voting,  not  being  a  resident  of  the  county  thirty  days,  is 
punished  by  imprisonment  in  the  penitentiary  from  one  to 
three  years. 

Voting,  not  being  a  resident  of  the  voting  precinct  twenty 
days,  is  punished  by  a  fine  and  imprisonment  in  this  and  nearly 
all  the  States. 

Procuring  another  to  cast  an  illegal  vote,  knowing  he  has 
no  right  to  cast  it,  is  punished  by  a  fine  of  from  one  to  five 
hundred  dollars,  and  imprisonment  for  from  one  to  six  months. 

But  if  a  person  brings  another  into  another  county  for  the 
purpose  of  casting  his  vote  there,  knowing  he  is  not  qualified 

38 


ILLEGAL  VOTING.  39 

to  vote  in  such  county,  the  crime  is  a  felony,  and  is  punished 
by  from  one  to  five  years  in  the  penitentiary. 

Deceiving  an  elector  who  can  not  read,  as  to  his  ticket,  is 
punished  by  from  one  to  three  years  in  the  penitentiary. 

A  judge  of  an  election  is  not  allowed,  after  the  counting  of 
the  ballots  has  commenced,  to  postpone,  or  adjourn  to  another 
place,  or  remove  the  ballot  box  from  the  place  of  voting  or 
from  the  custody  or  presence  of  all  the  judges  of  election,  under 
a  penalty  of  one  hundred  to  one  thousand  dollars  fine,  and  ten 
days  imprisonment. 

Judges  of  election  who  knowingly  count  any  fraudulent 
vote,  if  the  same  can  be  designated,  along  with  the  legal  votes, 
get  from  one  to  three  years  in  the  penitentiary. 

Marking  ballots  to  ascertain  how  any  person  votes,  is  pun 
ished  by  a  fine  not  over  fifty  dollars,  and  not  over  ten  days  im- 
prisonment. 


CHAPTER  XI. 
Frauds  and  Forgery. 

THE  list  of  frauds  punished  by  statute  in  this  and  other 
States  is  so  large  that  it  is  impossible  to  go  into  details 
regarding  each  one.     Some  are  felonies  and  some  mis- 
demeanors.    We  enumerate  the  most  important  and 
give  the  grade  of  crimes. 

Selling  by  false  weights  is  a  misdemeanor  punished  by  fifty 
dollars  fine,  or  thirty  days,  or  both.  (For  sake  of  brevity  we 
give  the  outside  limit  of  fines  and  imprisonment,  the  judge 
having  the  power  to  reduce  the  amount  at  his  pleasure,  unless 
a  minimum  limit  is  given.) 

Making  or  using  false  gas  meters,  five  hundred  dollars,  or 
thirty  days,  or  both. 

Taking  illegal  toll  at  a  mill,  twenty  dollars  and  liable  for 
damages. 

Selling  article  having  forged  stamp,  one  hundred  dollars. 
Making  out  a?id  presc?iting  false  claims  to  public  officers,  if 
the  claim  is  for  thirty-five  dollars  or  more,  from  one  to  ten 
years  in  the  penitentiary;  if  less  than  that  sum,  two  hundred 
dollars,  or  thirty  days,  or  both. 

FALSE  PRETENSES. 
Obtaining  property  or  signature  by  false  pretense,  if  value 
of  property  or  mercantile  paper  to  which  signature  is  obtained 
is  thirty-five  dollars  or  over,  one  to  three  years  in  the  peniten- 
tiary; if  less  than  that  sum,  ten  to  one  hundred  dollars  fine,  or 
ten  to  sixty  days,  or  both. 

This  subject  of  false  pretense  is  one  of  the  most  important 
in  the  list  of  crimes.     It  is  one  perhaps  more  frequently  prac- 

40 


FALSE    PRETENSES.  4 1 

ticed  than  any  other  larcenous  crime  except  larceny  itself.  A 
false  pretense,  within  the  meaning  of  the  statute,  and  also  at 
common  law,  must  relate  to  a  past  event  or  an  existing  fact. 
Any  representation  or  assurance  in  relation  to  a  future  trans- 
action is  not  included.  There  are  three  necessary  elements 
which  an  indictment  must  clearly  state  and  charge  in  order  to 
hold  one  accused  of  obtaining  property  by  false  pretenses:  i. 
The  making  of  some  false  pretense.  2.  The  obtaining  thereby 
from  another  person  some  item  of  money,  goods,  merchandise 
or  effects.  3.  That  the  same  was  obtained  with  intent  to 
cheat  or  defraud  the  person  from  whom  so  obtained.  If  the 
offense  consists  in  obtaining  the  signature  of  a  person  to  a  note 
or  other  evidence  of  indebtedness,  the  amount  of  the  note  and 
not  its  value  will  determine  the  grade  of  the  offense.  For  in- 
stance, if  A,  by  false  pretense,  procure  the  signature  of  B,  who 
is  notoriously  insolvent,  to  a  promissory  note,  the  crime  would 
be  complete,  although  the  note  be  worthless.  The  crime 
would  be  a  felony  in  Ohio  if  the  amount  of  the  note  were 
thirty-five  dollars  or  more ;  if  less  than  that,  misdemeanor. 

A  contract  for  the  loan  of  money,  induced  by  false  pretenses 
of  the  borrower,  falls  within  the  statute. 

A  partner  who  is  guilty  of  fraud  in  the  affairs  of  the  part- 
nership, is  fined  five  hundred  dollars,  or  imprisoned  six 
months,  or  both,  and  is  liable  to  the  party  injured  to  the  ex- 
tent of  his  damage. 

Selling  or  conveying  land  without  a  title,  with  intent  to  de- 
fraud, is  punished  by  from  one  to  seven  years  in  the  peniten- 
tiary. 

Making  fradulcnt  transfers  of  property  to  defeat  creditors, 
twenty  to  five  hundred  dollars  fine,  or  ten  days,  or  both. 

Executing  and  deliveri?ig  false  and  fraudulent  bills  of 
lading,  receipts,  schedules,  etc.,  one  to  four  years  in  the  peni- 
tentiary. 


42  THE    LAW    OF    CRIME. 

Executing  and  delivering  false  and  fictitious  warehouse  re- 
ceipts, one  to  three  years  in  the  penitentiary. 

FORGERY. 

(See  definition.)  The  Ohio  statute  on  the  subject  of  forgery 
is  exhaustive  and  too  lengthy  to  be  given  here  in  full.  The 
words  used  to  cover  the  ground  of  "forging"  are,  "whoever 
falsely  makes,  alters,  forges,  counterfeits,  prints  or  photo- 
graphs." The  instruments  subject  to  this  crime  are,  "any 
record,  or  other  authentic  matter,  of  a  public  nature,  or  any 
license  or  certificate  authorized  by  the  laws  of  this  State,  or 
any  charter,  letters  patent,  deed,  lease,  writing,  obligatory, 
will,  testament,  annuity,  bond,  covenant,  bank-bill  or  note, 
check,  bill  of  exchange,  contract  or  promissory  note,  or  any 
acceptance  of  a  bill  of  exchange,  or  the  number  or  principal 
sum  of  any  accountable  receipt  for  any  note,  or  any  order, 
warrant  or  request  for  the  payment  of  money,  or  the  delivery 
of  goods  or  chattels,  or  any  acquittance  or  receipt  for  money 
or  goods,  or  any  release  of  any  debt,  account,  action,  suit,  de- 
mand, or  any  plat  of  land,  or  transfer  of  money,  stock  or  other 
property,  or  any  letter  of  attorney,  or  power  to  receive  money, 
or  to  receive  and  transfer  stock  or  annuities,  or  to  lease  or  con- 
vey real  or  personal  property  of  any  kind,  or  any  bill  or  war- 
rant drawn  by  any  auditor  for  the  payment  of  money  at  any 
public  treasury,"  etc.  It  must  be  "with  intent  to  defraud." 
The  statute  includes  the  uttering  or  publishing  of  any  such 
false  or  forged  matter,  and  makes  the  crime  forgery,  punish- 
able by  from  one  to  twenty  years  in  the  penitentiary. 

Cutting  out  the  words  "one  dollar"  from  a  bank  note  and 
artfully  substituting  blank  paper,  on  which  is  afterward  writ- 
ten "ten  dollars,"  and  substituting  "ten"  for  "one"  in  the  mar- 
gin, with  intent  to  defraud,  is  forgery  under  the  Ohio  statute. 

An  endorsement  of  a  promissory  note  is  the  subject  of  forg- 
ery in  Ohio  and  perhaps  in  all  the  States. 


FORGERY.  43 

Notes  are  sometimes  signed  in  blank  and  marginal  figures 
entered  to  indicate  the  amount  for  which  the  note  is  to  be  filled 
up.  Where  the  person  entrusted  with  filling  up  and  negotiat- 
ing the  note  changes  the  marginal  figures  and  fills  the  note  up 
for  a  larger  amount  than  was  intended  by  the  maker,  it  is  no 
forgery  of  the  note. 

A  forged  instrument  was  in  the  following  form:  "Wen. 
19th.  Mr.  Davis:  Pleas  let  the  boy  have  $6.00  dolers  for  me. 
B.  W.  Earl."  This  instrument  is  held  to  be  prima  facia  an 
order  for  the  payment  of  money  and  therefore  within  the  stat- 
ute. Jones  wanted  to  defraud  Brown  and  procured  Smith,  an 
innocent  party,  to  sign  Brown's  name  to  a  promissory  note,  by 
falsely  representing  to  Smith  that  Brown  had  authorized  him 
to  do  so.     Held,  that  Jones  was  guilty  of  forgery. 

A  forged  paper  read  as  follows:  "Mr.  Westphal,  pleas  let 
me  have  the  loan  of  twenty  dolers  till  Saturday  nite.  Frank 
Hall."  Held,  that  this  is  not  an  order  or  request  for  the  pay- 
ment of  money  within  the  meaning  of  the  statute.  The  young 
negro  who  perpetrated  this  clever  swindle  got  sixty  days  in  the 
Cincinnati  Work  House  and  $100  fine  for  obtaining  money 
under  false  pretenses,  the  full  extent  of  the  law. 

An  indictment  charged  a  person  with  forging  a  transfer  of 
a  bill  of  exchange,  which  had  not  been  endorsed  by  the  payee, 
by  falsely  endorsing  thereon  a  stranger's  name.  The  indict- 
ment is  bad,  because  if  the  endorsement  were  genuine  it  could 
not  operate  as  a  transfer  of  the  bill.  This  follows  from  the 
rule  of  law  which  states  that  the  forged  instrument  must  be 
such  that,  if  genuine,  either  of  itself  or  in  connection  with  the 
extrinsic  facts  averred,  it  would  be  valid  to  defraud  or  preju- 
dice the  rights  of  the  party  thus  named. 

The  forged  instrument  should  always  be  produced  at  the 
trial,  if  possible,  but  if  it  has  been  lost,  the  prosecutor  may 
show  the  fact,  and  then  he  may  produce  secondary  evidence  of 
the  forged  instrument. 


44  THE   LAW   OF   CRIME. 

Using  the  facsimile  signature  of  the  Governor  of  the  State 
to  any  paper  purporting  to  be  a  public  document,  with  intent 
to  defraud,  is  made  forgery  by  special  statute.  Forging  or  al- 
tering railroad  or  toll-bridge  tickets,  or  having  such  in  posses- 
sion, with  intent  to  defraud,  is  punished  by  not  more  than  five 
hundred  dollars  fine,  or  six  months'  imprisonment,  or  both. 

Altering  and  defacing  public  documents,  or  abstracting  or 
concealing  the  same,  is  punished  by  a  fine  not  exceeding  three 
hundred  dollars,  or  not  more  than  three  months  imprisonment, 
or  both. 

Forging  a  brand,  stamp  or  trade-mark  usually  affixed  by  any 
person  to  his  goods,  wares,  merchandise,  etc.,  with  intent  to 
palm  off  any  goods,  etc.,  to  which  such  forged  copy  or  likeness 
is  affixed  as  the  goods,  etc.,  of  such  person,  is  punished  by  a 
fine  of  not  more  than  five  hundred  dollars,  or  imprisonment 
not  more  than  twelve  months,  or  both. 

COUNTERFEITING. 

Nearly  all  the  States  have  laws  providing  for  the  punish- 
ment of  counterfeiting,  but  few  cases  come  under  the  State 
courts  in  late  years,  as  all  the  money  of  the  country,  gold,  silver 
and  paper,  is  issued  under  the  direction  and  supervision  of  the 
United  States  Government,  and  infractions  of  the  United  States 
law  against  counterfeiting  are  always  brought  in  the  United 
States  courts.  For  this  reason  we  will  give  the  United  States 
law  on  the  subject  of  counterfeiting.  It  is  comprised  in  three 
sections,  one  relating  to  counterfeiting  national  bank  notes,  one 
to  gold  and  silver  coin,  and  one  to  the  minor  coins. 

National  Bank  Notes. — "Every  person  who  falsely  makes, 
forges,  or  counterfeits,  or  causes  or  procures  to  be  made,  forged, 
or  counterfeited,  or  willingly  aids  or  assists  in  falsely  making, 
forging,  or  counterfeiting,  any  note  in  imitation  of,  or  purport- 
ing to  be  in  imitation  of,  the  circulating  notes  issued  by  any 
banking  association  now  or  hereafter  authorized  and  acting 


COUNTERFITING.  45 

under  the  laws  of  the  United  States;  or  who  passes,  utters,  or 
publishes,  or  attempts  to  pass,  utter,  or  publish,  any  false, 
forged,  or  counterfeited  note,  purporting  to  be  issued  by  any 
such  association  doing  a  banking  business,  knowing  the  same 
to  be  falsely  made,  forged,  or  counterfeited,  or  who  falsely  alters, 
or  causes  or  procures  to  be  falsely  altered,  or  willingly  aids  or 
assists  in  falsely  altering  any  such  circulating  notes,  or  passes, 
utters,  or  publishes,  or  attempts  to  pass,  utter  or  publish  as 
true,  any  falsely  altered  or  spurious  circulating  note  issued,  or 
purporting  to  have  been  issued,  by  any  such  banking  associa- 
tion, knowing  the  same  to  be  falsely  altered  or  spurious,  shall 
be  imprisoned  at  hard  labor  not  less  than  five  years,  nor  more 
than  fifteen  years,  and  fined  not  more  than  one  thousand  dol- 
lars."—  U.  S.  Rev.  Stat.,  5415. 

Gold  or  Silver  Coin. — "Every  person  who  falsely  makes, 
forges,  or  counterfeits,  or  causes,  or  procures  to  be  falsely  made, 
forged,  or  counterfeited,  or  willingly  aids  or  assists  in  falsely 
making,  forging,  or  counterfeiting  any  coin  or  bars  in  resem- 
blance or  similitude  of  the  gold  or  silver  coins  or  bars  which 
have  been,  or  hereafter  may  be,  coined  or  stamped  at  the  mints 
and  assay-offices  of  the  United  States,  or  in  resemblance  or 
similitude  of  any  foreign  gold  or  silver  coin  which  by  law  is,  or 
hereafter  may  be  made,  current  in  the  United  States,  or  are  in 
actual  use  and  circulation  as  money  within  the  United  States,  or 
who  passes,  utters,  publishes  or  sells,  or  attempts  to  pass,  utter, 
publish,  or  sell,  or  bring  into  the  United  States  from  any  foreign 
place,  or  has  in  his  possession,  any  such  false,  forged  or  counter- 
feited coin  or  bars,  knowing  the  same  to  be  false,  forged,  or 
counterfeited,  shall  be  punished  by  a  fine  of  not  more  than  five 
thousand  dollars,  and  by  imprisonment  at  hard  labor  not  more 
than  ten  years."—  U.  S.  Rev.  Stat.,  5457. 

Minor  Coins. — The  section  in  regard  to  minor  coins  is  es- 
sentially the  same  as  the  preceding,  excepting  as  to  the  coun- 


46  THE   LAW   OF   CRIME. 

terfeiting  of  foreign  coin  current  in  this  country,  which  is 
omitted,  and,  as  to  the  punishment,  the  fine  shall  not  exceed 
one  thousand  dollars,  and  imprisonment  at  hard  labor  not  more 
than  three  years. 

Section  5430  provides  for  the  punishment  of  any  one  who 
may  use  the  government  plates  to  print  notes  except  for  the 
government  and  by  order  of  the  proper  officer;  also  for  the 
punishment  of  any  one  who  may  engrave,  or  cause  to  be 
engraved,  or  assist  in  engraving  any  plate  in  the  likeness  of 
any  plate  designed  for  printing  government  obligations  or  se- 
curities; also  for  the  punishment  of  any  one  who  sells,  or  has 
in  his  possession,  or  brings  in  from  any  foreign  country,  ex- 
cept by  lawful  authority,  any  such  plate ;  also  for  the  punish- 
ment of  any  one  who  prints,  or  photographs  or  makes  any  im- 
pression or  print  in  the  likeness  of  any  such  obligation  or  se- 
curity; the  punishment  in  all  these  cases  is  a  fine  not  exceed- 
ing five  thousand  dollars,  or  imprisonment  at  hard  labor  not 
more  than  fifteen  years,  or  both.  This  section  has  been  re-en- 
acted in  substance  by  the  Ohio  Legislature. 

Postage  Stamps. — Counterfeiting  postage  stamps,  or  stamps 
on  stamped  envelopes,  or  on  postal  cards,  is  punished  by  a  fine 
not  exceeding  two  thousand  dollars,  or  imprisonment  at  hard 
labor  not  more  than  five  years,  or  both. 

Mutilating  Coins. — Mutilating,  defacing,  impairing  or  light- 
ening the  gold  or  silver  coins  of  the  United  States,  or  any  for- 
eign coins  current  in  the  United  States,  is  punished  by  a  fine 
of  not  more  than  two  thousand  dollars,  and  imprisonment  not 
more  than  two  years. 

Gilding  Coins. — The  State  of  Ohio  has  a  law,  Section  7100, 
Revised  Statutes,  punishing  the  gilding  of  any  coins  passing 
current  in  the  State,  so  as  to  give  it  the  appearance  of  any  of 
the  gold  coins  of  the  United  States,  or  any  other  gold  coins 
passing  currently  in  this  State,  with  intent  to  defraud,  or  pass- 


COUNTKRFITINC.  47 

ing  or  putting  into  circulation  any  such  false  or  gilded  money, 
knowing  that  it  is  not  genuine.  The  punishment  is  imprison- 
ment in  the  penitentiary  not  more  than  five  years  nor  less 
than  one. 

The  State  of  Ohio  also  has  a  statute,  Section  7101,  provid- 
ing for  the  punishment  of  any  one  who  falsely  makes,  forges, 
counterfeits  or  alters  any  stamp,  note,  bond,  coupon,  postage 
or  fractional  currency,  or  other  security,  issued  under  the  au- 
thority of  any  act  of  Congress.  The  punishment  is  the  same 
as  provided  by  the  United  States  for  the  same  offense,  a  fine 
of  not  more  than  five  thousand  dollars,  and  imprisonment  not 
more  than  fifteen  years. 

This  completes  the  list  of  the  most  important  felonies  and 
misdemeanors.  There  are  some  others  provided  for  by  special 
statute  in  this  State,  but  as  they  are  of  a  local  character,  prin- 
cipally special  acts  relating  to  the  conduct  of  State  institutions, 
or  to  the  punishment  of  persons  who,  in  some  way,  interfere 
with  public  institutions  or  their  inmates,  they  have  no  general 
interest  and  are  omitted.  The  definitions  of  crimes  that  we 
have  given  will  be  found  correct  in  all  the  States,  and  the 
crimes  themselves  are  of  a  general  character,  punishable  by 
the  laws  of  all  States,  though  the  amount  of  punishment  var- 
ies in  many  instances. 

We  will  next  take  up  the  relation  of  detective  work  to  crime, 
the  duties  of  officers,  the  rights  and  privileges  of  private  de 
tectives  and  citizens,  and  endeavor  to  cover  briefly  so  much  ot 
criminal  procedure  as  it  is  important  for  constables,  detectives, 
sheriffs  and  all  arresting  officers,  and  in  fact  everybody,  to 
know. 


how  to  PRoeeeu 


CHAPTER  I. 

PREVENTION  OF  CRIME. 


IT  is  really  more  important  to  prevent  crime  than  to  punish 
it.     The  principal  object  of  punitive  laws  and  institutions 
is  to  protect  society,  and  at  the  same  time  to  work  out  as 
far  as  possible,  the  reformation  of  the  culprit  himself;  also 
to  have  a  restraining  influence  upon  others,  whose  natural  de- 
pravity or  stress  of  circumstances  might  incline  them  to  the 
commission  of  crime. 

Sometimes  the  extreme  gravity  of  the  crime  demands  the 
entire  removal  of  the  offender  from  society,  as  in  the  case  of 
murder  in  the  first  or  second  degree.  In  this  case  the  reform- 
ation of  the  criminal  is  dropped  entirely  out  of  view,  and  fhe 
protection  of  society  becomes  a  matter  of  supreme  moment, 
justifying  in  the  eye  of  the  law,  the  entire  removal  of  the  crimi- 
nal either  by  death  or  life  imprisonment. 

These  deterrent  means  of  preventing  crime  are  more  success- 
ful perhaps  than  would  at  first  thought  appear. 

If  punishment  for  infractions  of  the  law  were  removed  the 
increase  in  crime  would  be  appalling  to  contemplate.  .  At  the 
best  these  means  of  preventing  crime  are  indirect  and  it  must 
be  admitted  that  the  positive  processes  of  the  law  for  the  pre- 
vention of  crime  are  very  few  and  of  little  force  except  in  mis- 
demeanors. The  first  and  most  important  of  the  positive 
measures  of  the  law  to  prevent  crime  is  the 

48 


PEACE   WARRANT.  49 

PEACE  WARRANT. 

A  peace  warrant  is  an  instrument  issued  in  the  name  of  the 
State  to  the  sheriff  or  any  constable  of  the  county,  or  if  issued 
by  an  officer  of  a  municipal  corporation,  then  to  the  marshal  or 
other  police  officer  of  such  corporation,  commanding  him  to 
arrest  the  person  complained  of  and  to  take  him  before  the 
magistrate  issuing  the  warrant,  or  some  other  magistrate  of  the 
same  county,  to  answer  the  complaint. 

The  circumstances  which  justify  the  issuance  of  a  peace 
warrant,  are  a  complaint  made  in  writing,  and  upon  oath  before 
a  justice  of  the  peace,  mayor,  or  police  judge,  that  the  complain- 
ant has  cause  to  fear,  and  does  fear,  that  another  person  named 
will  commit  an  offense  against  the  person  or  property  of  him- 
self, or  of  his  ward  or  child.  The  magistrate  must  then  issue 
the  warrant. 

The  officer  charged  with  the  arrest  must  bring  the  accused 
before  the  magistrate,  who  will  examine  the  complaint,  hearing 
all  witnesses  and  the  defendant  upon  oath,  and  if  he  is  not  sat- 
isfied that  there  is  just  cause  for  the  complaint  he  shall  dis- 
charge the  accused  and  render  judgment  in  favor  of  the  State 
against  the  complainant  for  the  costs  of  the  prosecution  and 
issue  execution  therefor. 

The  accused  may  waive  trial  before  the  magistrate  and  enter 
into  recognizance  with  security  for  his  appearance  at  court. 
The  magistrate  should,  however,  in  this  case  investigate  the 
complaint  far  enough  to  satisfy  himself  as  to  the  nature  of  the 
offense  it  is  feared  will  be  committed  with  a  view  to  fixing  the 
amount  of  bail.  The  amount  fixed  by  law  in  Ohio  is  not  less 
than  fifty  and  not  more  than  five  hundred  dollars.  The  magis- 
trate should  be  guided  by  the  heinousness  of  the  offense,  the 
probability  that  it  will  be  committed  if  no  bail  is  required,  and 
the  ability  of  the  accused  to  give  bail.  His  object  should  be  to 
4 


50  HOW   TO   PROCEED. 

preserve  the  peace  and  require  such  bail  as  in  his  judgment 
under  the  circumstances  will  accomplish  that  end. 

Having  decided  the  amount  of  bail  to  be  given,  either  after 
full  examination  of  the  complaint  or  when  the  accused  waives 
trial,  he  shall  commit  the  accused  to  jail  if  he  fail  to  give  the 
requisite  recognizance,  to  remain  until  discharged  by  due 
course  of  law. 

The  accused  is  entitled  to  trial  at  the  first  term  of  court  un- 
less there  is  good  cause  for  continuance. 

If  the  complainant  fail  to  prosecute  the  case  in  the  upper 
court  the  accused  shall  be  discharged,  or  if  upon  a  hearing 
under  oath  the  court  is  of  the  opinion  that  there  is  not  just 
cause  for  complaint,  the  accused  shall  be  discharged  and  judg- 
ment entered  against  the  complainant  for  costs,  and  award 
execution  therefor.  But  if  the  court  finds  good  cause  for  the 
complaint,  the  accused  shall  be  ordered  to  enter  further  se- 
curity, for  such  time  as  may  be  just,  to  keep  the  peace  and  be 
of  good  behavior,  and  judgment  is  rendered  against  him  for  the 
costs,  and  execution  awarded  therefor. 

A  magistrate,  mayor,  or  police  judge  may,  without  process 
or  other  proof,  order  any  one  to  give  security  to  keep  the  peace, 
who  creates  a  disturbance  in  his  presence,  or  threatens  to  beat 
or  kill  another,  or  contends  with  hot  and  angry  words. 

Any  person  convicted  of  a  misdemeanor  may  be  required 
by  the  court  to  enter  into  recognizance  to  keep  the  peace  for 
such  time  as  the  court  may  direct,  not  exceeding  two  years. 

Threatened  Prize  Fight.— Any  sheriff,  constable,  marshal 
or  police  officer  who  has  reason  to  believe  that  any  one  is  about 
to  engage  in  a  prize  fight  in  his  bailiwick,  either  as  principal 
or  second,  shall  forthwith  arrest  him  and  take  him  before  a 
judge  of  the  common  pleas,  or  magistrate,  where  a  hearing 
shall  be  had  as  before  described,  and  if  the  compkint  is  found 
true,  the  accused  shall  enter  into  a  recognizance,  with  sureties 


SEARCH    WARRANT.  5  I 

in  a  sum  not  less  than  five  hundred,  and  not  more  than  ten 
thousand  dollars,  that  he  will  not  engage  in  any  such  fight 
within  one  year,  in  this  State  or  elsewhere.  If  he  fails  to  give 
the  bail  he  must  go  to  jaii,  but  may  be  released  upon  *>is  own 
recognizance  in  a  similar  amount  after  one  month's  confine- 
ment. 

SEARCH  WARRANT. 

There  are  four  objects  for  which  a  magistrate,  mayor,  or 
police  judge,  may  issue  a  warrant  ordering  an  officer  to  search 
any  house  or  place : 

1.  For  property  stolen,  taken  by  robbers,  embezzled,  or  ob- 
tained under  any  false  pretense. 

2.  For  forged  or  counterfeit  coins,  stamps,  imprints,  labels, 
trade-marks,  bank  bills,  or  other  instruments  of  writing,  and 
dies,  plates,  stamps,  or  brands  for  making  the  same. 

3.  For  books,  pamphlets,  ballads  or  printed  papers,  contain- 
ing obscene  language,  prints,  pictures,  or  descriptions,  mani- 
festly tending  to  corrupt  the  morals  of  youth,  and  for  obscene, 
lewd,  or  indecent,  or  lascivious  drawings,  lithographs,  engrav- 
ings, pictures,  daguerreotypes,  photographs,  stereoscopic  views, 
models,  or  casts,  and  for  instruments  or  articles  of  indecent  or 
immoral  use,  or  instruments,  articles,  or  medicines  for  procur- 
ing abortion,  or  for  the  prevention  of  conception,  or  for  self- 
pollution. 

4.  For  any  gaming  table,  establishment,  device,  or  appara- 
tus kept  or  exhibited  for  the  purpose  of  unlawful  gaming,  or  to 
win  or  gain  money  or  other  property,  and  for  any  money  or 
property  won  by  unlawful  gaming. 

An  Affidavii  Necessary. — Before  a  magistrate  or  other 
officer  issue  a  search  warrant  there  must  be  filed  with  him  an 
affidavit,  particularly  describing  the  house  or  place  to  be 
searched,  the  person  to  be  seized,  and  the  things  to  be  searched 
for,  and  alleging  substantially  the  offense  in  relation  thereto, 


52  HOW   TO   PROCEED. 

and  stating  that  affiant  believes,  and  has  good  cause  to  believe, 
that  such  things  are  there  concealed. 

The  search-warrant  is  sometimes  a  very  effective  method 
of  preventing  crime,  as  it  oftentimes  secures  the  implements 
with  which  crime  is  committed  and  thus  prevents  their  fur- 
ther use. 

The  warrant  should  contain  a  copy  of  the  affidavit. 

The  accused  has  a  right  to  have  the  warrant  and  affidavit 
read  to  him.  The  warrant  should  order  the  search  to  be  made 
in  the  day-time,  unless  there  is  urgent  necessity  for  a  search 
in  the  night,  in  which  case  a  search  in  the  night  may  be  or- 
dered. The  warrant  must  say  whether  the  search  is  to  be 
made  in  the  day  or  night. 

If  the  search  discovers  the  articles  desired,  they  are  kept 
by  the  magistrate  issuing  the  warrant  as  evidence. 

If  the  accused  is  discharged,  the  articles  taken  shall  be 
returned  to  him;  if  convicted,  they  shall  be  returned  to  the 
proper  owner  if  stolen,  and  the  other  things  destroyed  under 
direction  of  the  court. 

For  right  to  break  doors  see  same  subject  under  Arrest. 

These  two  instruments,  the  peace-warrant  and  the  search- 
warrant,  are  almost  the  total  machinery  of  any  State  for  the 
active  and  direct  prevention  of  crime. 


CHAPTER  II. 

WHO  MAY  ARREST. 

ARRESTS  are  made  with  and  without  warrants.     The 
general  rule  of  law  in  all  the  States  is  set  forth  in  the 
Ohio  Statute,  Section  7129:  "A  sheriff,  deputy  sheriff, 
constable,  marshal   or  deputy  marshal,  watchman  or 
police  officer,  shall  arrest  and  detain  any  person  found  violat- 
ing any  law  of  this  State,  or  any  legal  ordinance  of  a  city  or 
village  until  a  legal  warrant  can  be  obtained." 

It  will  be  observed  that  this  statute  relates  to  the  arrest  of 
a  person  found  in  the  act  of  violating  a  law.  If  an  officer  finds 
a  person  in  possession  of  an  article  which  he  has  stolen  previ- 
ously, that  will  be  in  the  law  a  sufficient  finding  of  him  in  the 
act  of  committing  a  larceny,  and  he  may  be  arrested  without  a 
warrant.  But  the  officer  must  know,  of  his  own  knowledge, 
that  the  article  is  stolen.  It  will  not  do  for  another  to  tell 
him.  He  can  not  act  on  that.  But  if  the  thief  admit  that  the 
article  is  stolen,  he  may  arrest  him  without  warrant.  A  full 
and  interesting  discussion  of  this  subject  will  be  found  in 
Judge  Mathews'  charge  to  the  jury  in  the  Belch  case,  which  is 
given  in  another  place. 

If  an  officer  is  resisted  by  the  person  whom  he  is  attempt- 
ing to  arrest,  the  amount  of  force  he  may  use  depends  upon 
the  grade  of  the  crime  for  which  he  is  arresting  the  person. 
If  the  crime  committed  is  a  felony,  all  the  force  necessary  to 
effect  the  arrest  may  be  used,  even  to  shooting,  and  if  the 
criminal  is  killed,  it  will  be  his  own  fault.  It  must  be  abso- 
lutely necessary,  however,  to  shoot  to  effect  the  arrest  in  order 
to  justify  the  officer  in  doing  so. 

53 


C4  HOW   TO    PROCEED. 

In  this  connection  three  questions  of  importance  arise: 
i .  When  an  officer  may  arrest  without  a  warrant. 

2.  What  constitutes  finding  a  person  in  the  act  of  violating 
the  law. 

3.  When  may  an  officer  shoot  at  an  escaping  prisoner. 

Early  in  the  year  1887  a  case  came  up  in  the  courts  of  Cin- 
cinnati that  beautifully  illustrates  the  law  on  these  points,  and 
we  think  students  of  this  subject  will  be  benefited  and  inter- 
ested by  the  charge  of  Judge  Samuel  R.  Mathews  to  the  jury 
in  the  case. 

The  circumstances  were  as  follows:  Kendrick  L,.  Belch  was 
a  policeman,  belonging  to  the  Cincinnati  Police  Force.  A  col- 
ored man  named  Brown  had  stolen  a  coat  in  Kentucky  from  a 
man  named  McBee,  and  brought  it  into  Ohio.  Belch,  while  in 
the  regular  performance  of  his  duty,  undertook  to  arrest  Brown 
for  the  larceny  of  the  coat  without  a  warrant.  Brown  fled  and 
Belch  shot  and  wounded  him  with  a  mortal  wound  from  which 
he  died.  Belch  was  arrested  and  put  upon  trial  for  man- 
slaughter. Following  is  the  most  important  part  of  Judge 
Mathews'  charge  to  the  jury  before  they  retired  to  make  up 
their  verdict. 

JUDGE  MATHEWS'  CHARGE. 

"The  act  complained  of  on  behalf  of  the  State  is  the  firing 
of  a  pistol  loaded  with  ball  at  the  person  of  James  Bro  am  by 
the  defendant,  Belch,  under  circumstances  which  the  law  did 
not  justify  him  in  doing.  After  that  act  of  the  defendant  is 
shown  by  the  evidence  and  found  and  ascertained  by  the  jury, 
the  question  of  whether  or  not  it  was  an  unlawful  act  is  for  the 
court  to  determine,  under  the  laws  of  the  State.  And  I  will 
say  to  you,  right  here,  that  if  the  shooting  of  a  pistol  loaded 
with  ball  at  the  person  of  James  Brown,  by  this  defendant,  is 
proved  to  your  satisfaction  or  is  admitted  on  all  hands,  and  if 
death  resulted  from  the  wound  received  from  that  pistol  ball, 


JUDGE  MATHEWS'  CHARGE.  55 

then,  unless  the  defendant  was  acting  in  some  way  or  in  some 
capacity  authorized  by  law  to  justify  him  in  firing  that  pistol 
at  him,  under  the  circumstances,  then  the  crime  is  made  out, 
and  it  will  be  your  duty  to  find  him  guilty  of  manslaughter  as 
charged. 

"Now  there  are  two  defenses  suggested  in  the  evidence  and 
the  arguments  of  counsel,  in  case  the  jury  should  find  that  the 
act  complained  of  was  committed,  which,  it  is  claimed,  justified 
the  defendant  in  discharging  his  pistol  at  Brown  at  that  time. 

"The  first  is,  that  the  defendant  was  acting  in  his  just  ^nd 
necessary  self-defense  at  the  time  he  fired  the  pistol  and  in- 
flicted the  wound. 

"The  second  is,  that  whether  that  be  so  or  not,  he  was 
a  police  officer  of  the  City  of  Cincinnati  at  that  time,  and,  as 
such,  duly  authorized  to  arrest  offenders  against  the  laws  of 
the  State  and  offenders  against  the  municipal  ordinances  of  the 
city;  that  he  was  on  duty  at  that  time;  that  he  wore  the  insig- 
nia of  his  office,  to-wit,  his  uniform  and  his  badge,  visible  to  all 
persons.  That  he  undertook,  to  arrest  Brown,  the  deceased,  for 
a  crime  known  to  the  laws  of  the  State  of  Ohio;  that  he  did,  in 
fact,  arrest  him,  and  that  Brown  attempted  to  escape  from  that 
arrest  and  fled,  and  that  thereupon  he  was  justified  in  firing  at 
him  for  the  purpose  of  resuming  his  arrest  and  recapturing  his 
person  in  order  to  subject  him  to  criminal  prosecution  for  a  i 
charge  against  the  laws  of  the  State  of  Ohio." 

Then  followed  a  definition  of  self-defense  and  when  it  justi- 
fies a  homicide,  the  substance  of  which  is  that  it  is  only  in  a  case 
wherein  the  slayer,  in  the  careful  and  proper  use  of  his  facul- 
ties, in  good  faith  believes  and  has  reasonable  grounds  to  be- 
lieve that  he  is  in  imminent  danger  of  death  or  great  bodily 
harm  at  the  hands  of  the  person  slain,  and  this  must  be  shown 
to  the  jury  by  the  one  who  seeks  to  justify  himself  on  this 
ground  by  a  fair  preponderance  of  the  testimony. 


56  HOW  TO   PROCEED. 

Then  the  court  took  up  the  questions  for  the  elucidation  of 
which  we  introduce  this  charge  here  : 

"The  next  question  raised  by  the  defense  is  this:  That 
Brown,  having  been  charged  by  McBee  with  the  crime  of  lar- 
ceny, and  his  arrest  having  been  requested  of  this  defendant, 
who  was  then  a  police  officer  on  duty  on  that  beat,  that  the 
defendant  undertook  to  arrest  Brown  in  order  to  subject  him 
to  prosecution  for  that  offense. 

"And  the  question  has  been  raised  here  as  to  the  legality 
of  the  arrest,  if  an  arrest  was  made.  Whether  an  arrest  was 
made  by  the  defendant  of  Brown  or  not,  is  a  question  of  fact 
for  you,  under  certain  principals  of  law  to  which  I  will  call 
your  attention  in  a  moment.  But  the  question  of  law  has  been 
raised.  The  State  claims  that  for  the  offense  charged  the 
officer  had  no  right  to  arrest  Brown  without  a  warrant.  And 
it  was  confessed  that  no  warrant  had  been  issued  for  the  arrest 
of  Brown. 

"The  law  of  this  State  is  found  in  the  code  regulating  crim- 
inal procedure  (Sections  7129  and  7130),  and  declares  that  a 
Sheriff,  Deputy  Sheriff,  Constable,  Marshal-  or  Deputy  Mar- 
shal, watchman  or  police  officer  shall  arrest  and  detain  any 
person  found  violating  any  law  in  this  State,  or  any  local 
ordinance  of  a  city  or  village,  until  a  legal  warrant  can  be 
obtained.  That,  you  will  observe,  gentlemen,  authorizes  the 
officers  named  in  it — and  that  includes  a  police  officer  of 
the  City  of  Cincinnati,  in  which  capacity  this  defendant 
was  acting  at  the  time — to  arrest  and  detain  any  person 
found  violating  any  law  in  this  State  or  any  local  ordinance  of 
a  city  or  village,  that  detention  to  last  until  a  legal  warrant  can 
be  obtained.  The  violation  of  the  law  requires,  gentlemen, 
that  in  making  arrests,  as  a  general  rule,  a  warrant  must  be 
first  obtained,  duly  issued  by  the  officers  intrusted  by  the  law 
of  the  State  with  that  duty,  and  that  warrant  can  only  issue 


JUDGE    MATHEWS'    CHARl  57 

upon  an  affidavit  being  filed  before  that  officer,  stating  and 
showing  to  the  satisfaction  of  that  officer  that  an  offense 
against  the  laws  of  the  State  has  been  committed  by  the  per- 
son named  in  it.  That  is  the  general  rule.  Every  person 
charged  with  crime  must  be  arrested  •  under  a  warrant  of  that 
kind,  obtained  upon  an  affidavit  issued  by  a  magistrate  or 
other  officer  authorized  by  law  to  issue  warrants;  and  the 
issuance  of  the  warrant  is  not  a  matter  of  right,  because  it  is 
made  the  duty  of  the  officer  before  whom  that  affidavit  is  filed 
and  to  whom  application  is  made  to  issue  a  warrant  to  examine 
to  see  whether  or  not  there  is  probable  reason  to  believe  that 
an  offense  has  been  committed  before  he  is  required  to,  or,  in- 
deed, justified  in  issuing  a  warrant. 

"  There  are,  however,  certain  exceptions  to  that  general  rule, 
and  one  of  them  is  contained  in  the  section  to  which  I  called 
your  attention:  That  these  officers,  among  whom  police  offi- 
cers of  the  City  of  Cincinnati  are  — in  which  category  the  de- 
fendant is  found — shall  arrest  and  detain  any  person  found 
violating  the  laws  of  the  State,  or  a  local  ordinance  of  a  city  or 
village.  What  does  it  mean,  gentlemen?  In  what  cases  has  a 
police  officer  the  right  to  arrest  without  a  warrant?  Because  the 
right  to  arrest,  under  that  section,  is  as  broad  as  the  law.  It  is 
not  confined  to  any  particular  class  of  cases,  as  felonies  and  mis- 
demeanors. Our  law  divides  all  classes  of  criminal  offenses 
into  two  classes,  felonies  and  misdemeanors.  Felonies  are  those 
offenses  which  the  Legislature  has  provided  punishment  for  by 
confinement  in  the  State  Penitentiary,  or  death,  as  in  the  case 
of  murder  in  the  first  degree. 

"Misdemeanors  are  all  offenses  for  which  a  less  punish- 
ment than  that  is  provided.  Now,  an  officer  named  in  Section 
7129  has  power  to  arrest  in  the  case  there  supposed,  even  for  a 
misdemeanor,  as  well  as  felony,  and  for  all  violations  of  the  or- 
dinances of  the  city;  but  it  is  only  in  case  that  a  person  is 


58  HOW  TO   PROCEED. 

found  violating  one,  and  that  is  found  by  himself,  which,  in 
the  old  law,  was  clear,  actual  view.  In  other  words,  if  an 
officer  saw  a  person  committing  a  crime  against  the  laws  of 
the  State,  whether  it  was  a  felony  or  a  misdemeanor,  or  against 
the  ordinance  of  the  city,  he  had  power  to  arrest  him  without 
a  warrant,  because  he  was  found  committing  it.  It  is  not 
claimed,  however,  in  this  case,  that  this  defendant  found  this 
Brown  in  the  commission  of  any  offense  at  the  time  he  un- 
dertook to  arrest  him,  if  he  undertook  to  arrest  him  at 
the  time  he  first  went  to  the  saloon  in  question.  The  al- 
legation on  behalf  of  the  defendant  is  that  the  crime  with 
which  Brown  was  charged  was  the  stealing  of  a  coat,  the 
value  of  which  has  been  put  by  the  man  who  claims  to  have 
owned  it  at  $6  or  $7,  and  that  that  coat  was  brought  by  Brown 
into  the  State  of  Ohio,  and  that,  therefore,  there  was  an  offense 
committed  by  Brown  in  the  State  of  Ohio.  The  law  with  re- 
gard to  that,  gentlemen,  is  this:  If  a  man  steals  in  the  State  of 
Kentucky  an  article  of  personal  property,  he  is  guilty  of  lar- 
ceny there.  If  he  brings  it  into  Ohio,  and  remains  in  posses- 
sion of  it  in  Ohio,  he  is  guilty  of  larceny  in  Ohio  as  well,  that 
being  what  we  call  a  'continuous  larceny.'  He  is  guilty  of 
possession  in  Ohio,  which  is  equivalent  to  the  original  stealing. 
"Larceny  is  divided  by  the  law  of  this  State  into  two  kinds, 
grand  and  petit.  Grand  larceny  is  where  the  amount  stolen  is 
$35  or  upward,  and  petit  larceny  is  where  the  amount  stolen 
is  below  that.  Grand  larceny  is  a  felony  and  petit  larceny  is 
a  misdemeanor  under  the  laws  of  this  State.  Now  I  charge 
you,  with  regard  to  the  validity  of  the  arrest  on  that  charge  by 
this  defendant,  that  information  merely  conveyed  to  him  was. 
not  sufficient  to  warrant  him  in  making  an  arrest,  without  a 
warrant  duly  issued  from  the  proper  officer.  But  if  he  found 
this  man  in  possession  of  a  coat  that  would  be  sufficient  finding 
by  him  of  Brown  in  the  commission  of  petit  larceny  within 


JUDGE   MATHEWS     CHASGB.  59 

this  State,  and  would  justify  him  in  arresting  him.  That  is  a 
question  of  fact  for  you  to  determine,  gentlemen,  whether  he 
acted  simply  upon  information  conveyed  to  him  by  those 
colored  men,  McBee  and  the  other,  who  made  complaint,  or 
whether  he  had  any  information  other  than  that,  which  would 
enable  him  to  say  that  he  saw  or  found  Brown  in  the  commis- 
sion of  that  offense  of  stealing  the  coat.  If  he  did  not,  if  he 
acted  merely  upon  the  information  of  these  outsiders,  no  mat- 
ter whether  that  information  was  correct  or  incorrecl,  he  had 
no  right  to  make  the  arrest  without  a  warrant. 

"It  is  not  necessary  that  the  defendant  should  have  actually 
seen  the  goods,  or  that  they  should  have  been  in  the  manual 
possession  of  Brown  at  that  time.  It  is  sufficient  if  Brown 
brought  them  into  the  State  of  Ohio,  and  had  them  in  his  con- 
structive possession.  If  he  had  them  in  his  room,  where  he 
slept,  or  if  he  had  them  in  any  other  place  where  they  were 
subject  to  his  control,  they  were  just  as  much  in  his  possession, 
in  contemplation  of  law,  to  render  him  guilty  of  larceny,  as 
they  would  be  if  he  had  the  coat  in  his  arms  or  on  his  back. 
The  officer  had  no  need  to  see  Brown  in  actual  possession,  if 
he  knew  from  Brown's  statement,  or  from  the  facts  that  existed 
there,  not  from  the  mere  statement  of  the  prosecuting  witness 
in  such  a  case  as  that,  but  if  he  had  knowledge  of  his  own — 
because  the  statute  authorized  him  only  to  act  upon  his  own 
knowledge.  If  he  had  knowledge  that  Brown  was  in  posses- 
sion, it  is  not  necessary  that  the  goods  be  actually  there. 

"For  instance,  if  Brown  should  have  confessed  to  the  offi- 
cer that  the  goods  were  in  the  State  of  Ohio ;  that  he  had  stolen 
them  in  the  State  of  Kentucky  and  brought  them  to  the  State 
of  Ohio,  and  that  they  were  still  here  subject  to  his  order  and 
control,  it  would  be  sufficient  to  find  him  in  the  actual  perpe- 
tration of  the  crime,  within  the  meaning  of  this  statute,  and  to 
authorize  him  to  make  the  arrest. 


60  HOW   TO   PROCEED. 

"You  will  observe,  gentlemen,  that  I  have  said  to  you  that 
if  the  value  of  the  clothes  as  sworn  to — and  that  is  a  question 
of  fact  for  you  to  find — was  under  $35,  the  crime,  if  it  was  a 
crime  in  the  State  of  Ohio,  was  that  of  petit  larceny,  which  is  a 
misdemeanor  in  this  State.  It  is  alleged,  and  there  is  testi- 
mony tending  to  show  that  when  the  officer  showed  himself  in 
pursuance  of  a  former  agreement  entered  into  between  him  and 
the  complaining  men,  McBee  and  his  friend,  in  this  saloon,  that 
Brown  took  to  his  heels  and  attempted  to  escape,  went  out  the 
side  door  into  the  hall,  court,  or  area,  and  back  through  a  pas- 
sageway which  has  been  described  to  you  and  which  you  have 
had  an  opportunity  of  seeing — I  have  not — out  onto  the  street 
in  the  rear  of  these  premises,  where  the  final  scene  took  place. 
That  upon  this  flight  the  officer  pursued,  upon  which  the  man 
Brown  took  a  bar  which  served  as  a  fastening  for  that  door, 
and,  as  is  claimed  by  counsel  in  the  argument,  committed  an 
assault  upon  the  defendant  by  throwing  that  bar  at  him.  You 
have  heard  the  evidence  upon  that  subject,  gentlemen.  Whether 
or  not  that  bar  was  thrown  by  Brown  at  the  defendant  with  the 
view  to  striking  him,  or  whether  it  was  simply  taken  out  of  its 
place  as  a  fastening  to  the  door  and  dropped  upon  the  floor,  in 
order  to  make  his  exit  you  will  determine  that  fact.  If  you  find, 
however,  that  Brown  simply  took  it  out  and  dropped  it,  that 
was  no  assault.  If  he  threw  it  at  the  defendant  with  the  intent 
to  strike  him,  and  was  within  striking  distance,  then  it  was 
what  in  law  is  called  an  assault,  even  though  the  defendant  was 
not  struck.  But  an  assault  on  a  man  is,  in  itself,  a  misdemean- 
or, and  not  a  felony.  That  is,  it  is  not  punishable  by  impris- 
onment in  the  penitentiary,  but  only  by  confinement  in  the 
work-house.  Bear  this  distinction  in  mind,  gentlemen,  because 
it  becomes  important  after  a  while. 

"It  is  then  stated  in  evidence,  with  what  truth  you  are  to 
determine,  that  after  Brown  started  out  the  door,  running,  the 


JUDGE  MATHEWS'  CHARGE.  6 1 

defendant  followed  him  in  a  run,  pursuing  him;  that  as  Brown 
made  his  way  through  the  yard  in  order  to  get  out  the  rear,  he- 
had  to  ascend  a  small  flight  of  steps;  that  on  top  of  them,  or  at 
the  bottom  of  them,  I  don't  know  which,  he  slipped  and  fell, 
and  that  when  he  fell  the  defendant  caught  up  to  him  and  put 
his  hand  upon  him,  and  then  it  is  claimed,  on  behalf  of  the  de- 
fendant, that  he  arrested  him.  An  arrest,  gentlemen,  in  law  is 
the  taking  into  custody  a  person  in  pursuance  of  a  legal  com- 
mand or  authority.  Mere  spoken  words  will  not  constitute  an 
arrest,  there  must  be  something  in  the  way  of  physical  con- 
straint, though  it  is  enough  if  the  party  making  the  arrest  may 
touch  the  other,  even  with  the  end  of  his  finger. 

"  When  he  came  to  the  steps  it  is  claimed  that  when  the 
man  was  down  the  officer  put  his  hand  upon  him,  and  that 
Brown  produced  a  razor  and  threw  it  at  the  defendant.  There 
is  a  question  of  fact  that  you  will  have  to  determine.  In  the 
first  place,  did  he  throw  such  razor?  H  so,  with  what  intent 
and  under  what  circumstances?  If  he  threw  it  at  him  under 
circumstances  which  justify  you  in  believing  that  he  intended 
to  kill  the  defendant  or  to  inflict  a  wound  upon  him ;  if,  from 
consideration  of  the  nature  of  the  instrument  and  the  manner 
in  which  it  was  thrown,  you  come  to  the  conclusion  that  it  was 
thrown  by  Brown,  and  it  was  thrown  with  intent  either  to 
wound  or  to  kill  the  defendant,  then  it  was  a  felony  committed 
by  Brown.  Because  an  assault  with  an  intent  to  kill  or  wound 
is  punishable  by  imprisonment  in  the  State  Penitentiary,  and 
is,  therefore,  a  felony.  And  these  distinctions  are  important, 
gentlemen,  to  keep  in  view,  to  determine  what  the  right  of  the 
defendant  was  in  pursuing  Brown  and  firing  this  shot  at  him. 
If  he  pursued  him  simply  to  recapture  him,  take  him  into 
custody,  for  the  purpose  of  making  him  answer  to  the  alleged 
larceny  of  those  goods,  then  he  was  pursuing  him  with  intent 
to  arrest  him  for  a  misdemeanor,  and  then  he  had  no  right  to 
fire  a  shot  at  him,  unless  it  was  in  his  necessary  self-defense. 


62  HOW   TO    PROCEED. 

"The  other  question  of  his  right,  as  a  police  officer,  to  fire 
at  an  escaping  prisoner  does  not  arise.  But  if  you  find  that 
there  was  no  self-defense  upon  the  part  of  this  defendant,  and 
the  question  turns  upon  his  lawful  authority  as  a  police  officer, 
I  charge  you  that  if  he  undertook  to  arrest  Brown,  who  was  es- 
caping from  him,  then,  if  he  undertook  to  arrest  him  for  a  mis- 
demeanor as  I  have  described  to  you,  he  had  no  authority  in 
law  to  fire  at  him  with  a  loaded  pistol,  and  if  he  did  so  he  com- 
mitted an  unlawful  act;  and  if  the  consequence  of  that  unlaw- 
ful act  was  the  death  of  Brown  the  defendant  is  guilty  of  man- 
slaughter. If,  however,  he  pursued  him  with  intent  to  take 
him  into  custody  for  a  felony,  that  is  to  say,  for  assault  with 
intent  to  kill  or  wound,  then  he  would  have,  under  certain  cir- 
cumstances, a  right  to  pursue  him  to  that  extent,  even  to  use 
his  pistol,  in  order  to  stop  him  and  to  effectually  make  his  cap- 
ture. The  law  discriminates  between  offenses  of  a  great  nature 
and  offenses  of  a  slight  nature.  Where  a  felony  has  been  com- 
mitted, either  if  the  officer  has  a  warrant  for  the  arrest  of  the 
person  or  if  the  felony  has  been  committed  in  his  presence,  in 
his  actual  view,  then  he  has  a  right  to  pursue  and  capture  the 
man  at  all  hazards;  and  if  the  guilty  party  who  is  seeking  to 
escape  from  the  lawful  authority  of  the  officer  loses  his  life, 
either  in  the  struggle  that  may  take  place  when  they  are  hand- 
to-hand  together,  or  in  attempting  to  escape  at  a  distance,  it  is 
at  his  own  risk. 

"  In  cases  of  a  felony,  if  an  escaping  prisoner  may  be  re- 
taken without  the  firing  upon  and  killing  him,  it  is  the  duty  of 
the  officer  so  to  do.  And  it  is  always  the  duty  of  the  jury,  in 
such  cases  as  that,  to  inquire  as  to  the  necessity  for  the  act 
which  produced  the  death;  whether  or  not,  under  the  circum- 
stances, the  escaping  party  could  have  been  secured  without 
firing  upon  and  killing  him  or  wounding  him.  If  he  could, 
then  the  officer  was  not  justified  in  so  firing.  Otherwise  he 
would  be." 


JUDGE  MATHEWS'  CHARGE.  63 

This  clear  and  able  charge  emphasizes  the  points  we  stated 
in  the  opening  of  this  chapter.  Any  of  the  officers  named 
may  arrest  any  person  found  in  the  commission  of  a  crime, 
either  felony  or  misdemeanor,  without  a  warrant. 

An  officer  in  attempting  to  arrest  a  person  in  the  first  in- 
stance, or  to  re-arrest  him  after  an  escape,  may  use  all  necessary 
force  to  effect  an  arrest  even  to  shooting,  provided  the  offense 
for  which  the  arrest  is  made  is  a  felony.  If  it  is  a  midemeanor 
he  must  not  shoot  or  use  such  violent  means  as  to  endanger 
the  man's  life,  else  he  will  find  himself  in  the  unfortunate 
position  of  Officer  Be.lch,  languishing  in  the  penitentiary  for 
manslaughter,  for  the  jury  convicted  him  of  that  crime. 

When  any  one  may  arrest. — When  a  felony  has  been  com- 
mitted any  person  may,  without  warrant,  arrest  another  who 
he  believes,  and  has  reasonable  cause  to  believe,  is  guilty  of 
the  offense,  and  may  detain  him  until  a  legal  warrant  can  be 
obtained.  Any  one  who  finds  another  in  the  act  of  committing 
a  felony  may  arrest  him  at  once  without  a  warrant. 

Observe  the  word  felony.  This  is  the  class  of  crimes  for 
which  any  one  may  arrest  without  a  warrant.  This  means  that 
a  private  citizen,  private  detective,  officer,  or,  in  fact,  any  one 
who  believes  a  certain  person  to  be  guilty  of  a  felony,  may 
arrest  him  without  a  warrant.  But  simply  believing  is  not 
enough.  He  must  have  reasonable  grounds  for  his  belief.  A 
mere  suspicion  will  not  do.  There  must  be  such  important 
circumstances  or  evidence  as  would  lead  a  reasonable  man  to 
believe  that  the  person  had  committed  the  crime.  As  soon  as 
possible  after  the  arrest  is  made,  a  warrant  must  be  procured. 
It  is  always  best  to  procure  the  warrant  before  making  the  ar- 
rest if  the  circumstances  will  permit.  If  there  is  no  danger  of 
the  one  suspected  of  crime,  or  known  to  be  the  criminal,  es- 
caping, or  of  a  continuation  or  aggravation  of  the  crime,  the 
warrant  should  be  procured  first. 


64  HOW   TO   PROCEED. 

A  warrant. — (See  definition.)  Any  officer  anthorized  to 
issue  a  peace  warrant  may  issue  process  for  the  apprehension 
of  any  person  charged  with  an  offense.  This  process  is  called 
a  warrant.  It  must  always  be  based  upon  an  affidavit  charg- 
ing a  person  with  the  commission  of  an  offense.  The  warrant 
does  not  issue  of  right,  however,  upon  the  simple  filing  of  an 
affidavit  with  the  magistrate.  It  is  his  duty  to  issue  the  war- 
rant if  he  has  reasonable  ground  to  believe  that  the  offense 
charged  has  been  committed.  If  he  has  not  he  may  refuse  to 
issue  the  warrant. 

FORM    OF    AFFIDAVIT. 

The  following  form  of  affidavit  will  be  sufficient  in  perhaps 
all  the  States: 

The  State  of  Alabama,  \  ^  . 
Jefferson  county,       } 

Before  me,  Simeon  Bowles,  personally  came  Elias  Honshall, 
who,  being  duly  sworn  according  to  law,  deposes  and  says  that 
on  or  about  the  12th  day  of  August,  1889,  at  the  county  of 
Jefferson,  one  John  Koloseus  \Jiere  describe  the  offense  com- 
mitted as  accurately  as  possible^ 

ELIAS  HONSHALL. 

Sworn  to  and  subscribed  before  me  this  14th  day  of 
August,  1889.       SIMEON  BOWLES,  Justice  of  the  Peace. 

The  warrant  is  directed  to  the  sheriff  or  any  constable  of 
the  county,  or  if  it  is  issued  by  an  officer  of  a  municipal  cor- 
poration, then  to  the  marshal  or  other  police  officer.  It  must 
recite  the  affidavit,  or  have  a  copy  of  it  attached  to  it,  and  re- 
ferred to.  It  commands  the  officer  forthwith  to  take  the  ac- 
cused and  bring  him  before  the  magistrate  or  court  issuing  the 
warrant,  or  some  other  magistrate  of  the  county  having  cog- 
nizance of  the  case,  to  be  dealt  with  according  to  law. 


FORM  OF  WARRANT.  65 

FORM  OF  WARRANT. 

The  State  of  Alabama,  [ 
Jefferson  county,       ) 

To  any  constable  of  said  Jefferson  county,  greeting: 
Whereas,  There  has  been  filed  with  me  an  affidavit,  of 
which  the  following  is  a  copy:  [Here  copy  the  affidavit^  These 
are,  therefore,  to  command  you  to  take  the  said  John  Koloseus, 
if  he  be  found  in  your  county,  or,  if  he  has  fled,  that  you  pur- 
sue after  him  into  any  other  county  in  the  State,  and  take  and 
safely  keep  the  said  John  Koloseus,  so  that  you  have  his  body 
forthwith  before  me,  or  some  other  magistrate  of  said  county, 
to  answer  the  said  complaint,  and  be  further  dealt  with  accord 
ing  to  law. 

Given  under  my  hand,  this  14th  day  of  August,  1889. 

SIMEON  BOWLES,  Justice  of  the  Peace. 

As  indicated  in  the  warrant,  if  the  accused  has  fled  or  re- 
moved to  another  county,  the  officer  may  follow  and  arrest  him 
there  and  convey  him  back  to  the  county  in  which  the  warrant 
was  issued.  The  warrant  may  be  issued  by  a  magistrate  in 
the  county  to  which  the  accused  has  fled  or  removed. 

The  arresting  officer  has  the  authority  and  the  power  to 
convey  the  prisoner  back  to  the  county  where  the  crime  is 
alleged  to  have  been  committed  without  any  process  of  law. 

Breaking  Doors. — The  arresting  officer,  who  is  executing  a 
warrant  for  a  person  charged  with  an  offense,  or  a  search- 
warrant,  may  break  open  any  outer  or  inner  door  or  window 
of  a  dwelling  house,  or  other  building,  if  he  be  refused  admit- 
tance after  giving  notice  of  his  office  and  purpose.  But  in  the 
case  of  a  search-warrant  the  officer  is  not  authorized  to  enter 
any  house  or  building  not  described  in  the  warrant. 

The  Examination. — The  prisoner  being  brought  before  the 
magistrate,  the  officer  who  made  the  arrest  should  make  the 
5 


66  HOW   TO   PROCEED. 

following  return  or  memorandum  on  the  warrant,  and  deliver 
it  to  the  magistrate  : 

August  15th,  1889.  I  took  the  body  of  the  within  named 
John  Koloseus,  and  have'  him  before  the  magistrate  within 
named.  \Or  if  he  took  him  before  some  other  magistrate,  name 
him.']  PETER  JACKSON,  Constable. 

The  examination  of  the  prisoner  should  then  be  held  with- 
out delay,  unless  there  is  some  just  cause  why  it  should  be 
postponed.  If  there  be  just  cause  for  postponing,  the  magis- 
trate may  commit  the  accused  to  the  county  jail  for  safe- 
keeping until  the  cause  of  the  delay  is  removed  and  no  longer, 
but  the  whole  time  of  such  confinement  (in  Ohio)  shall  not  be 
more  than  four  days.  The  magistrate,  also,  has  the  power,  at 
his'discretion,  in  case  of  necessary  postponement,  to  remand 
the  prisoner  to  the  custody  of  the  arresting  officer,  to  be  kept 
in  some  secure  and  convenient  place  other  than  the  jail,  to  be 
designated  by  the  magistrate,  but  this  confinement  must  not 
exceed  four  days — the  prisoner  must  have  a  hearing  at  all 
events  within  four  days  from  the  time  of  his  arrest.  When  a 
postponement  is  ordered  the  accused  may  enter  into  a  recog- 
nizance, with  surety  (provided  the  offense  with  which  he  is 
charged  is  bailable  under  the  constitution  and  laws  of  the 
State),  to  appear  before  the  court  at  a  place,  day  and  hour 
named,  to  answer  to  the  charges ;  but  this  adjournment  shall 
not  be  for  longer  than  twenty  days  without  the  consent  of  the 
accused. 

This  work  is  not  intended  as  a  guide  for  magistrates,  but 
only  to  serve  as  an  aid  to  arresting  officers,  whether  they  have 
been  acting  in  the  capacity  of  detectives,  constables  or  sheriifs, 
consequently  we  pursue  this  subject  no  further  in  this  direc- 
tion. It  will  be  observed  that  our  directions  for  procedure 
have  been  confined  to  those  cases  in  which  the  criminal  was 


FORM    OF    WARRANT.  67 

located  in  the  same  county  in  which  the  crime  was  committed, 
or  in  another  county  in  the  same  State.  A  case  involving 
more  difficulty  is  one  in  which  the  criminal  has  escaped  to 
some  foreign  country,  or  to  some  other  State  or  Territory  of 
the  United  States.  The  method  of  returning  him  to  the  juri> 
diction  of  the  crime,  if  it  is  possible  to  be  done  at  all,  will  be 
discussed  in  the  next  chapter. 


CHAPTER  III. 


EXTRADITION. — INTERSTATE. 


WHEN  a  person  commits  a  crime  in  one  State  or  Ter 
ritory  and  flees  into  another  State  or  Territory  and 
is  captured  there  he  can  not  be  returned  to  the  jur- 
isdiction of  the  crime,  to  be  tried  for  it,  without  the 
formal  process  of  extradition,  unless  he  consent  to  go  without 
this  formality.  The  same  is  true  if  the  criminal  flee  to  some 
foreign  country.  The  definition  of  the  word  extradition  will 
be  found  in  the  proper  place. 

The  extradition  of  fugitives  from  justice  between  the  States 
and  Territories  of  the  United  States  is  provided  for  in  the  Con- 
stitution of  the  United  States,  Article  4,  Section.  2: 

"A  person  charged  with  treason,  felony,  or  other  crime, 
who  shall  flee  from  justice,  and  be  found  in  any  other  State, 
shall  on  demand  of  the  executive  authority  of  the  State  from 
which  he  fled,  be  delivered  up  to  be  removed  to  the  State  hav- 
ing jurisdiction  of  the  crime." 

This  clause  of  the  constitution,  together  with  the  act  of 
Congress  on  the  same  subject,  forms  the  legal  basis  for  the  ex- 
tradition of  fugitives  between  the  States  of  the  Union.  Section 
5278  of  the  Revised  Statutes  of  the  United  States  is  as  follows: 

"Whenever  the  executive  authority  of  any  State  or  Terri- 
tory demands  any  person  as  a  fugitive  from  justice,  of  the  ex- 
ecutive authority  of  any  State  or  Territory  to  which  such 
person  has  fled,  and  produces  a  copy  of  indictment  found  or  an 
affidavit  made  before  a  magistrate,  of  any  State  or  Territory, 
charging  the  person  demanded  with  having  committed  treason, 

68 


EXTRADITION.  69 

felony,  or  other  crime,  certified  as  authentic  by  the  Governor 
or  chief  magistrate  of  the  State  or  Territory  from  whence  the 
person  so  charged  has  fled,  it  shall  be  the  duty  of  the  executive 
authority  of  the  State  or  Territory  to  which  such  person  has 
fled  to  cause  him  to  be  arrested  and  secured,  and  to  cause  notice 
of  the  arrest  to  be  given  to  the  executive  authority  making 
such  demand,  or  to  the  agent  of  such  authority  appointed  to 
receive  the  fugitive,  and  to  cause  the  fugitive  to  be  delivered 
to  such  agent  when  he  shall  appear.  If  no  such  agent  appears 
within  six  months  from  the  time  of  the  arrest,  the  prisoner 
may  be  discharged.  All  costs  or  expenses  incurred  in  the  ap- 
prehending, securing,  and  transmitting  such  fugitive  to  the 
State  or  Territory  making  such  demand,  shall  be  paid  by  such 
State  or  Territory." 

The  States  have  legislated  on  the  subject,  within  the  limits 
of  this  statute  and  the  constitution  of  the  United  States.  The 
details  of  procedure  vary  somewhat  in  the  different  States,  but 
the  essential  features  are  the  same.  The  Ohio  statute  covers 
the  ground  very  thoroughly  and  embodies  the  principal  rules 
of  all  the  States  on  the  subject. 

"Section  95.  The  Governor  of  this  State,  in  any  case  au- 
thorized by  the  constitution  of  the  United  States,  may,  on  de- 
mand, deliver  over  to  the  executive  of  any  other  State  or  Ter- 
ritory any  person  charged  therein  with  treason,  felony,  or  other 
crime  committed  therein,  and  he  may,  on  application,  appoint 
an  agent  to  demand  of  the  executive  authority  of  any  State  or 
Territory  any  offender  fleeing  from  the  justice  of  this  State: 
provided,  that  such  demand  or  application  is  accompanied  by 
sworn  evidence  that  the  party  charged  is  a  fugitive  from  justice 
and  that  the  demand  or  application  is  made  in  good  faith  for 
the  punishment  of  crimes,  and  not  for  the  purpose  of  collecting 
a  debt  or  pecuniary  mulct,  or  of  removing  the  alleged  fugitive 
to  a  foreign  jurisdiction  with  a  view  there  to  serve  him  with 


70  HOW   TO   PROCEED. 

civil  process;  and  also,  by  a  duly  attested  copy  of  an  indict- 
ment, or  a  duly  attested  copy  of  a  complaint  made  before  a 
court  or  magistrate  authorized  to  take  the  same,  such  com- 
plaint to  be  accompanied  by  affidavits  to  the  facts  constituting 
the  offense  charged,  by  persons  having  actual  knowledge  there- 
of, and  such  further  evidence  in  support  thereof  as  the  Gover- 
nor may  require." 

Section  96  provides  that  the  Governor  may  request  the  at- 
torney-general, or  the  prosecuting  attorney  of  any  county,  to 
investigate  the  grounds  of  the  demand  or  application,  and  re- 
port to  him  all  the  material  facts  with  an  abstract  of  the  evi- 
dence in  the  case.  And  if  a  person  is  demanded  by  another 
State  or  Territory,  he  is  especially  to  inquire  whether  he  is  in 
custody  or  under  recognizance  to  answer  for  any  offense  against 
the  laws  of  this  State,  or  is  held  by  force  of  any  civil  process, 
and  give  his  opinion  as  to  the  legality  and  necessity  of  comply- 
ing with  the  demand. 

Section  97  prescribes  the  method  of  procedure  when  the 
Governor  has  decided  that  it  is  proper  to  comply  with  the  de- 
mand. The  Governor  "shall  issue  a  warrant  to  the  sheriff  of 
the  county  in  which  such  person  so  charged  may  be  found, 
commanding  him  forthwith  to  arrest  and  bring  such  person 
before  a  judge  of  the  Supreme  Court  or  a  judge  of  the  Court 
of  Common  Pleas  of  this  State,  to  be  examined  on  the  charge ; 
and  upon  return  of  the  warrant  by  the  sheriff,  with  the  person 
so  charged  in  custody,  the  judge  before  whom  he  is  brought 
shall  proceed  to  hear  and  examine  such  charge."  If  the  proof 
is  to  him  sufficient  he  shall  commit  the  prisoner  to  the  county 
jail  for  a  reasonable  time  to  be  fixed  by  the  judge  in  the  order 
of  commitment,  and  cause  notice  to  be  given  to  the  executive 
authority  making  the  demand,  or  to  his  duly  authorized  agent 
appointed  to  receive  the  fugitive,  and  upon  the  payment  of  all 
costs  by  the  agent  the  fugitive  shall  be  delivered  to  him  to  be 


EXTRADITION.  7 1 

removed  to  the  proper  place  for  prosecution.  If  the  agent  does 
not  appear  within  the  time  fixed  by  the  judge  and  pay  all  costs 
the  sheriff  shall  discharge  the  prisoner. 

This  is  the  substance  of  the  statute  and  it  is  so  full  and  clear 
that  it  leaves  little  to  be  said  upon  the  subject,  as  to  the  general 
plan.  It  will  be  of  value  and  interest,  however,  to  the  officer 
or  agent  to  state  somewhat  in  detail  the  method  of  procedure 
under  the  statute.  It  will  be  observed  that  both  the  United 
States  and  the  State  statutes  provide  for  issuing  the  requisition 
in  two  ways :  i .  When  an  indictment  has  been  returned  by 
the  grand  jury.  2.  Upon  a  complaint  made  under  oath  before 
some  magistrate  or  court  authorized  to  take  the  same.  The 
process  of  extradition  is  exactly  the  same  in  either  case,  the 
only  difference  is  in  the  method  of  starting  the  machinery. 
The  executive  authorities  of  all  the  States  prefer  the  indictment 
and  will  frequently  refuse  to  extradite  a  fugitive  on  complaint 
if  the  grand  jury  has  been  in  session  since  the  commission  of 
the  crime  and  failed  to  return  an  indictment,  unless  a  very 
good  reason  is  given  therefor.  Our  explanation  will  proceed 
then  on  the  assumption  that  an  indictment  has  been  returned. 

EXTRADITION  UPON  INDICTMENT. 

When  a  crime  has  been  committed  and  the  perpetrator  is 
known,  it  is  the  duty  of  the  prosecuting  attorney  to  call  the 
matter  to  the  attention  of  the  grand  jury  at  its  first  session 
after  the  commission  of  the  crime,  and,  if  sufficient  evidence 
can  be  procured,  have  the  one  accused  indicted.  Then  if  the 
criminal  has  fled  from  the  State  and  is  located  in  some  other 
State  or  Territory,  the  prosecuting  attorney  of  the  county  in 
which  the  crime  was  committed  makes  a  formal  application  to 
the  Governor  of  his  State,  in  writing,  asking  him  to  make 
requisition  upon  the  Governor  of  the  State  or  Territory  in 
which  the  fugitive  is  located.     A  requisition  is  a  demand.     In 


72  HOW   TO   PROCEED. 

some  uses  the  word  has  a  milder  meaning  approaching  that  of 
request,  but  in  this  connection  it  means  a  formal  demand. 
Moreover,  it  is  a  demand  by  right.  No  discretion  is  vested  in 
the  Governor  on  whom  the  demand  is  made.  It  is  his  impera- 
tive duty  to  issue  the  warrant  of  extradition,  when  the  case  is 
shown  to  be  within  the  provisions  of  the  constitution  of  the 
United  States  and  the  act  of  Congress  on  the  subject.  No  one 
has  authority  to  issue  a  requisition  except  the  Governor  of  the 
State  in  which  the  crime  was  committed,  and  it  must  be 
directed  to  the  Governor  of  the  State  or  Territory  in  which  the 
fugitive  is  located.  It  can  not  be  directed  "to  the  Governor  of 
any  State  or  Territory."  When  the  prosecuting  attorney  makes 
application  to  the  Governor  for  his  requisition  he  must  accom- 
pany it  by  an  affidavit  which  sets  forth  the  purpose  for  which 
the  extradition  of  the  fugitive  is  desired  and  a  copy  of  the  indict- 
ment, if  one  has  been  returned.  He  usually  names  to  the 
Governor  some  person  to  be  appointed  as  agent  of  the  State,  for 
the  purpose  of  bearing  the  requisition  and  bringing  back  the 
fugitive.  This  agent  is  frequently  the  sheriff  of  the  county,  or 
his  deputy,  although  it  sometimes  happens  that  a  constable,  or 
a  private  detective  or  other  person,  has  taken  especial  interest 
in  locating  the  fugitive  and  working  up  the  case  and  such 
person  is  usually  appointed.  A  rule  that  most  executives  fol- 
low is  that  the  agent  shall  be  a  resident  of  the  State  in  which 
the  crime  was  committed. 

If  the  papers  are  in  proper  form,  and  the  case  meets  the 
approbation  of  the  Governor,  he  will  issue  his  requisition  upon 
the  Governor  of  the  State  in  which  the  fugitive  is  located. 
The  requisition  must  be  accompanied  by  the  papers  in  the 
case,  that  is,  a  copy  of  the  indictment  properly  certified,  and 
the  affidavit,  and  be  under  the  seal  of  the  State.  The  agent  of 
the  State  receives  a  special  commission  from  the  Governor. 
This  agent  takes  the  requisition  and  other  papers  and  presents 


EXTRADITION.  73 

them  first  to  the  Governor  of  the  State  in  which  the  fugitive  is 
located.  This  Governor  has  a  right,  and  it  is  his  duty,  to  ex- 
amine into  the  merits  of  the  case,  to  ascertain  whether  it  is  in 
accordance  with  the  constitution  and  laws  of  the  United  States; 
to  learn  also,  if  possible,  whether  the  criminal  action  is  brought 
simply  to  force  the  collection  of  a  debt,  which  is  too  common 
a  procedure  in  late  years;  or  to  mulct  the  accused  out  of 
money;  or  to  secure  his  presence  in  a  foreign  jurisdiction  so 
that  civil  process  may  be  served  on  him  in  some  other  mat- 
ter; and  if  he  finds  that  any  of  these  circumstances  is  true 
it  is  his  duty  to  refuse  the  application  and  decline  to  issue  his 
warrant.  He  should  also  inquire  particularly  whether  the 
person  wanted  is  in  custody  or  under  indictment,  or  recogniz- 
ance to  answer  for  any  crime  in  his  own  State,  and  if  so  refuse 
the  application,  because,  if  the  person  wanted  is  guilty  of  an 
infraction  of  the  laws  of  both  States,  the  one  having  actual  pos- 
session of  him  has  a  right  to  hold  him  for  punishment  against 
all  others.  After  the  violation  of  the  laws  of  his  own  State  has 
been  satisfied,  the  Governor  may  hand  him  over  to  the  other 
State  to  be  punished  there  for  the  crime  committed  in  it.  In 
order  to  investigate  all  these  points  thoroughly  and  satisfy 
himself  that  he  is  not  being  imposed  upon,  or  using  the  pro- 
cesses and  the  great  seal  of  his  State  to  collect  a  debt  or  pro- 
mote a  mulct,  he  may  call  to  his  aid  the  attorney-general  of 
the  State  or  the  prosecuting  attorney  of  the  county  in  which 
the  fugitive  is  located,  or  both.  When  the  investigation  shows 
that  every  thing  is  right  and  in  accordance  with  the  law  and  in 
proper  form,  and  that  the  application  is  made  in  good  faith  for 
the  punishment  of  crime,  then  the  Governor,  as  stated  before, 
has  no  discretion  in  the  matter,  but  must  issue  his  warrant. 
This  warrant  is  usually  directed  to  the  sheriff  of  the  county  in 
which  the  fugitive  is  located.  If  his  exact  location  in  the  State 
is  not  known,  or  the  fugitive  is  moving  about  from  one  county 


74  HOW   TO   PROCEED. 

to  another,  it  may  be  directed  to  any  sheriff  or  constable  of  the 
State.  It  is  a  warrant  for  the  arrest  of  the  fugitive,  for  a  crime 
committed  in  another  State,  and  the  date  and  nature  of  the  crime 
must  be  set  forth.  It  instructs  the  arresting  officer  to  make 
known  the  nature  of  the  criminal  charge  against  him  and  give 
him  an  opportunity,  if  he  desires  it,  to  apply  for  a  writ  of 
habeas  corpus;  to  transport  him  to  the  line  of  the  State  and 
deliver  him  to  the  agent  of  the  State  making  the  requisition, 
who  is  named,  all  to  be  done  at  the  expense  of  said  agent. 

The  great  writ  of  habeas  corpus  is  brought  into  use  more 
frequently,  perhaps,  in  the  extradition  of  criminals  than  in  any 
other  connection.  It  will  be  treated  fully  in  the  proper  place. 
The  prisoner  may  waive  all  court  proceedings,  and  consent  to 
return  at  once  without  any  further  legal  formalities.  If  he  do 
this  his  consent  to  do  so  should  be  reduced  to  writing,  and  he 
should  sign  it.  This  is  necessary  as  a  protection  to  the  agent  in 
case  the  prisoner  afterward  claim  that  he  was  not  allowed  his 
legal  rights,  and  was  forced  across  the  State  line  against  his 
will  and  without  due  process  of  law. 

It  often  occurs  that  the  arrest  is  actually  made  before  the 
extradition  process  is  started.  In  this  case  he  is  held  a  reason- 
able time,  not  more  than  six  months  by  the  United  States  law, 
and  in  practice  a  much  shorter  time,  for  the  agent  of  the  State 
wanting  him  to  appear.  It  frequently  is  the  case,  too,  that  the 
fugitive,  when  captured,  will  consent  to  return  without  the 
process  of  extradition.  This  consent  should  also  be  put  in 
writing,  and  be  signed  by  the  prisoner,  for  the  same  reasons  as 
stated  above  for  signing  his  consent  to  return  without  habeas 
corptis  proceedings. 

The  prisoner  remains  in  the  custody  of  the  arresting  officer 
until  the  court  has  determined  the  validity  of  the  requisition, 
and  heard  the  prisoner  upon  his  writ  of  habeas  corpus.  When 
that  has  been  determined,  if  favorable  to  the  prisoner,  he  is 


EXTRADITION.  75 

discharged;  if  favorable  to  the  State  making  the  requisition,  he 
is  remanded  to  the  custody  of  the  arresting  officer  to  be  taken 
to  the  line  of  the  State,  and  there  delivered  to  the  agent  of  the 
State  making  the  requisition.  Until  this  time  the  agent  has 
no  right  to  claim  the  prisoner,  and  all  proceedings  by  the 
agent,  or  other  officer,  to  remove  the  fugitive,  not  in  accordance 
with  the  law  as  laid  down  here  are  unlawful. 

The  formality  of  conducting  the  prisoner  to  the  State  line, 
and  there  turning  him  over  to  the  agent,  is  seldom  complied 
with;  the  practice  being  to  turn  him  over  as  soon  as  the  court 
proceedings  are  determined  favorable  to  the  State  making  the 
requisition. 

The  agent  must  give  a  receipt  for  the  body  of  the  prisoner. 

EXTRADITION    UPON   COMPLAINT. 

The  proper  basis  for  the  extradition  of  a  fugitive  from  jus- 
tice is  an  indictment  by  the  grand  jury,  if  that  is  possible  or 
practicable.  It  often  happens,  however,  that  extradition  pro- 
ceedings must  be  undertaken  before  it  is  possible  for  a  grand 
jury  to  return  an  indictment,  and  the  United  States  and  State 
laws  provide  for  circumstances  of  this  kind.  When  a  crime  is 
committed,  and  the  criminal  flees  to  another  State  and  is  ap- 
prehended there,  and  the  grand  jury  of  the  county  in  which 
the  crime  was  committed  is  not  in  session,  it  is  necessary  to 
institute  extradition  proceedings  upon  complaint.  Some  per- 
son having  actual  knowledge  of  the  facts  of  the  crime  must  go 
before  a  magistrate  or  court  authorized  to  receive  such  com- 
plaint, and  make  a  charge  or  complaint  upon  oath,  and  state 
the  facts  of  the  offense  charged  with  particularity  and  exact- 
ness. This  must  all  be  reduced  to  writing  and  sworn  to.  The 
prosecuting  attorney  then  transmits  this  charge  or  complaint 
to  the  Governor,  with  an  affidavit  as  to  the  purpose  of  the  ex- 
tradition, and  the  other  affidavit  to  the  facts  constituting  the 


76  HOW   TO   PROCEED. 

offense  by  the  person  having  actual  knowledge  of  the  crime. 
The  County  Clerk  in  case  of  complaint,  must  also  certify 
under  seal,  that  the  magistrate  before  whom  the  complaint  is 
made,  is  a  Justice  of  the  Peace  in  and  for  that  county  and 
State,  and  this  certification  must  be  sent  to  the  Governor  along 
with  the  other  papers  in  the  case. 

From  this  first  step  to  the  return  of  the  fugitive  as  a  prisoner, 
the  process  is  exactly  the  same  as  previously  described  under 
extradition  upon  indictment. 

The  steps  in  extradition  then,  to  sum  up  briefly,  are:  i. 
The  indictment  (or  complaint  as  the  case  may  be).  2.  The 
prosecuting  attorney's  request  in  writing  to  the  Governor  that 
he  issue  his  requisition  for  the  fugitive.  3.  The  Governor's 
requisition,  which  is  a  demand  upon  the  Governor  of  the  State 
to  which  the  fugitive  has  fled  that  he  be  turned  over  to  the 
State.  4.  The  warrant  issued  by  the  Governor  to  whom  the 
requisition  is  sent.  It  is  directed  to  a  sheriff  or  constable  and 
orders  the  arrest  of  the  fugitive.  5.  The  arrest. — If  the  arrest  has 
been  made  previously  this  instrument  legalizes  it.  It  is  like 
arresting  a  man  without  a  warrant  and  holding  him  until  a 
warrant  can  be  obtained.  6.  The  court  proceedings,  habeas 
corpus,  etc.,  unless  these  are  waived.  7.  Turning  the  prisoner 
over  to  the  agent,  and  taking  his  receipt  for  his  body. 

All  that  is  left  is  for  the  agent  to  return  with  his  prisoner 
to  the  county  in  which  the  crime  was  committed,  and  lodge 
him  in  jail  to  be  tried  as  any  other  prisoner. 

The  forms  for  the  extradition  of  fugitives  now  used  in 
Ohio  have  been  revised  and  perfected  within  the  last  two 
years,  and  are  as  nearly  perfect  as  they  can  be  made.  They 
are  considered  by  the  officers  iron-clad,  and  are  adapted  to  any 
State  in  the  Union.  With  a  set  of  papers  after  these  forms  it 
is  impossible  for  a  fugitive  to  get  away  on  any  technicality. 
The  forms  are  here  given  in  full : 


extradition.  77 

prosecuting  attorney's  application. 

Hamilton  County,  Ohio. 

OFFICE  OF  THE  PROSECUTING  ATTORNEY, 

Cincinnati,  August  /j,  i88g. 
To  His  Excellency,  the  Governor  : 

Sir  :  I  have  the  honor  to  request  that  you  issue 
a  requisition  upon  the  Governor  of  the  State  of  Minnesota, 
for  the  extradition  of  M.  C.  K.,  who  stands  charged  by  indict- 
ment (or  complaint  as  the  case  may  be)  with  the  crime  of  em- 
bezzlement, committed  in  this  county  on  the  24th  day  of  June, 
1889,  and  who,  to  avoid  prosecution,  fled  from  the  jurisdiction 
of  this  State,  and,  as  I  am  informed,  is  now  within  the  juris- 
diction of  said  State  of  Minnesota. 

I  Hereby  Certify,  That  in  my  opinion  the  ends  of  pub- 
lic justice  require  that  the  alleged  criminal  be  brought  to  this 
State  for  trial  at  the  public  expense ;  that  I  have,  as  I  verily 
believe,  sufficient  evidence  to  secure  his  conviction ;  that  there 
has  not  been,  so  far  as  I  am  aware,  any  former  application  for 
a  requisition  for  the  same  person,  for  the  same  offense,  which 
is  the  basis  of  this  application. 

Said  alleged  fugitive  is  not  now,  as  I  verily  believe,  under 
either  civil  or  criminal  arrest  in  said  State  of  Minnesota. 

I  Further  Certify,  That  this  application  is  not  made  for 
the  purpose  of  enforcing  the  collection  of  a  debt,  or  for  any 
private  purpose  whatever,  and  that  if  the  requisition  applied 
for  be  granted,  the  criminal  proceedings  shall  not  be  used  for 
any  of  said  objects. 

And  I  Further  Certify,  That  the  offense  with  which 
said  alleged  fugitive  ,is  charged  is  a  felony,  and  is  defined  by 
Section  6841,  Revised  Statutes  of  Ohio. 

The  delay  in  presenting  this  application  was  unavoidable, 
for  the  reason  that  {here  assign  reason  for  delay,  if  any). 


78  HOW   TO   PROCEED. 

I  designate  John  Doe  as  a  proper  person  to  be  appointed 
agent  of  the  State,  and  certify  that  he  has  no  personal  interest 
in  the  arrest  and  return  of  said  fugitive  other  than  proper  com- 
pensation for  his  services. 

Very  respectfully, 

JOHN  C.  SCHWARTZ,  Prosecuting  Attorney, 
Hamilton  County,  Ohio. 


prosecutor's  affidavit. 


STATE  OF  OHIO, ) 
Hamilton  County,    j  ss' 

I,  John  C.  Schwartz,  having  been  duly  sworn,  depose  and 
say  that  I  am  the  Prosecuting  Attorney  of  said  county,  that 
the  person  charged  by  indictment  with  the  crime  of  embezzle- 
ment is  a  fugitive  from  justice;  and  that  the  statements  made 
in  the  foregoing  application  for  a  requisition  for  his  extradition 
are  true,  as  I  verily  believe. 

JOHN  C.  SCHWARTZ. 

Sworn  to  before  me,  and  subscribed  in  my  presence,  this 
15th  day  of  August,  1889. 

JOHN  B.  PEASLEE, 
Clerk  of  Court  of  Common  Pleas, 
Hamilton  County,  Ohio. 


AFFIDAVIT   BY   COMPLAINING   WITNESS. 

STATE  OF  OHIO, 
Hamilton  County, 

Richard  Roe  being  duly  sworn,  deposes  that  he  is  the  com- 
plaining witness  in  the  case  of  the  State  of  Ohio  against  M.  C.  K. 
the   person   named   in   the   foregoing   application;   that  said 


EXTRADITION.  7g 

M.  C.  K.  is  a  fugitive  from  justice,  and  is  now,  as  he  believes, 
in  the  State  of  Minnesota;  that  he  desires  his  return  for  the 
sole  purpose  of  punishing  the  accused,  and  that  he  does  not 
desire  or  expect  to  use  the  prosecution  for  the  purpose  of  col- 
lecting a  debt,  or  for  any  other  private  purpose,  and  will  not 
directly  or  indirectly  use  the  same  for  any  of  said  purposes. 

RICHARD  ROE. 
Sworn  to  before  me,  and  subscribed  in  my  presence,  this 
isth  day  of  August,  1889. 

'JOHN  B.  PEASLEE, 

Clerk  of  Court  of  Common  Pleas, 

Hamilton  County,  Ohio. 


THE  STATE  OF  OHIO,  U.  S.  A.  ) 
Office  of  the  Governor.       j 

I,  J.  B.  Foraker,  Governor  of  said  State,  do  hereby  certify 
that  John  B.  Peaslee,  whose  genuine  signature  and  official  seal 
are  affixed  to  the  attestation  hereto  attached,  was,  at  the  date 
thereof,  Clerk  of  the  Court  of  Common  Pleas  of  Hamilton 
County,  in  said  State,  duly  commissioned  and  qualified;  that  he 
is  the  proper  officer  to  make  said  attestation,  which  is  in  due 
form;  and  that  his  official  acts  are  entitled  to  full  faith  and 

credit. 

In  Testimony  Whereof,  I  have  hereunto  sub- 
scribed my  name,  and  caused  the  Great  Seal  of 
the  State  of  Ohio  to  be  affixed,  at  the  city  of 
Columbus,  this  16th  day  of  August,  in  the  year 
of  our  Lord  one  thousand  eight  hundred  and 
eighty-nine  and  in  the  one  hundred  and  four- 
teenth year  of  the  Independence  of  the  United 
States  of  America. 

By  the  Governor:  J.  B.  FORAKER. 

DAN'L  J.  RYAN,  Secretary  of  State. 


80  HOW   TO    PROCEED. 

The  Governor  issues  a  commission  to  the   agent   of  the 
State  for  which  the  following  form  has  been  adopted  in  Ohio: 
In  the  name  and  by  the  authority  of 

THE  STATE  OF  OHIO, 

J.  B.  FORAKER, 
Governor  of  said  State. 

To  all  to  whom  these  presents  shall  come,  greeting: 
Whereas,  M.  C.  K.  has  been  charged  by  indictment  with 
committing  the  crime  of  embezzlement  within  the  county  of 
Hamilton,  in  this  State,  and  has,  by  a  requisition  of  this  date, 
been  demanded  of  the  Governor  of  the  State  of  Minnesota  as  a 
fugitive  from  justice ; 

Therefore,  I  do  hereby  appoint  John  Doe  to  be  the  agent 
of  this  State,  to  receive  the  said  M.  C.  K.  from  the  executive 
authority  of  the  State  of  Minnesota,  and  to  convey  him  to  the 
said  county  of  Hamilton,  to  be  tried  for  the  offense  aforesaid, 
according  to  law. 

In  Testimony  Whereof,  I  have  hereunto  sub- 
' — -J —  scribed  my  name,  and  caused  the  Great  Seal  of 

!)  the  State  of  Ohio  to  be  affixed,  at  Columbus, 
(         the  1 6th  day  of  August,  in  the  year  of  our  Lord 
~r i  1889,  and  in  the  114th  year  of  the  Independ- 
ence of  the  United  States  of  America. 
By  the  Governor:  J.  B.  FORAKER. 
DAN'E  J.  RYAN,  Secretary  of  State. 


THE   GOVERNOR'S   REQUISITION. 

THE  STATE  OF  OHIO, ) 
Executive  Department.  } 

To  His  Excellency,  the  Governor  of  Minnesota: 

Whereas,  It  appears  by  the  annexed  papers,  which  are 
duly  authenticated  in  accordance  with  the  laws  of  this  State,  that 


EXTRADITION.  8 1 

M.  C.  K.  stands  charged  by  indictment  with  the  crime  of  em- 
bezzlement, committed  in  the  county  of  Hamilton,  in  this 
State,  and  it  has  been  represented  to  me  that  he  has  fled  from 
the  justice  of  this  State,  and  taken  refuge  within  the  State  of 
Minnesota. 

Now,  Therefore,  Pursuant  to  the  provisions  of  the  Con- 
stitution and  Laws  of  the  United  States,  in  such  case  made 
and  provided,  I  do  hereby  make  Requisition  for  the  apprehen- 
sion of  said  Fugitive,  and  for  his  delivery  to  John  Doe,  the 
Agent  of  this  State,  duly  appointed  and  commissioned  to  receive 
him  and  convey  him  to  the  County  aforesaid,  there  to  be  dealt 
with  in  accordance  with  Law. 

In  TESTIMONY  Whereof,  I  have  hereunto  sub- 
scribed my  name,  and  caused  the  Great  Seal  of 
the  State  of  Ohio  to  be  affixed,  at  Columbus, 
the  16th  day  of  August,  in  the  year  of  our  Lord 
one  thousand  eight  hundred  and  eighty-nine, 
and  in  the  one  hundred  and  fourteenth  year 
of  the  Independence  of  the  United  States  of 
America. 
By  the  Governor:  J.  B.  FORAKER. 

DANX  J.  RYAN,  Secretary  of  State. 


THE    GOVERNOR'S   WARRANT. 

In  the  name  and  by  the  authority  of  the  State  of  Minnesota, 
W.  R.  Merriam,  Governor  of  said  State. 

To  all  to  whom  these  Presents  shall  come,  Greeting: 
To  the  Sheriff  of  Ramsey  County: 

Whereas,  Requisition  has  been  made  upon  me  by  the 

Governor  of  the  State  of  Ohio,  for  the  extradition  of  M.  C.  K., 

an  alleged   fugitive   from  the  justice  of  said  State  of  Ohio, 

charged  with  the  crime  of  embezzlement,  as  appears  by  a  copy 

6 


82  HOW    TO    PROCEED. 

of  indictment,  duly  authenticated,  and  attached  to  the  requisi- 
tion aforesaid; 

Therefore,  I  do  hereby  command  you  forthwith  to  arrest 
the  said  M.  C.  K.  and  bring  him  before  any  Judge  of  the  Su- 
preme Court,  Circuit  Court,  or  Court  of  Common  Pleas  of  this 
State  in  whose  district  or  jurisdiction  he  may  be  found,  to  be 
examined  upon  said  charge,  and  otherwise  dealt  with  as  pro- 
vided by  law;  and,  on  this  warrant,  if  so  directed  by  such  Judge, 
to  deliver  him  to  John  Doe,  the  Agent  appointed  by  the  Gov- 
ernor of  the  State  of  Ohio  to  receive  him ;  and  of  this  WAR- 
RANT, with  your  proceedings  thereunto,  make  due  return 
according  to  law. 

In  Testimony  Whereof,  I  have  hereunto  sub- 
scribed my  name,  and  caused  the  Great  Seal  of 
^w^^—  the  State  of  Minnesota  to  be   affixed,   at   St. 

!)  Paul,  the  20th  day  of  August,  in  the  year  of 

'  (  our    Lord   one    thousand   eight   hundred  and 

— v^"  eighty-nine,  and  in  the  one  hundred  and  four- 

teenth year  of  the  Independence  of  the  United 
States  of  America. 
By  the  Governor:  W.  R.  MERRIAM. 

H.  MATTSON,  Secretary  of  State. 


The  above  form  for  the  Governor's  warrant  is  the  Ohio 
form  adapted  to  the  State  of  Minnesota.  The  Minnesota  form 
is  different  in  some  unimportant  respects.  It  commands  the 
arresting  officer  to  conduct  the  fugitive  to  the  border  of  the 
State  and  there  deliver  him  to  the  agent,  but  as  before  stated 
this  formality  is  always  waived  and  few  of  the  forms  now  con- 
tain it. 


CASKS    AND    DECISIONS.  83 

CASES   AND   DECISIONS. 

Some  very  important  questions  have  arisen  under  the  ex- 
tradition laws  of  the  United  States  and  the  statutes  of  the  dif- 
ferent States.  Every  State  in  the  Union  has  enacted  laws  on 
the  subject,  all  in  accordance  with  and  supplementary  to  the 
Constitution  and  statutory  enactment  of  the  United  States  Gov- 
ernment. According  to  the  constitutional  provision  two  things 
must  be  clearly  made  out  before  the  Governor  upon  whom  the 
requisition  is  made  is  obligated  to  issue  his  warrant  for  their 
removal  from  the  State  :  1 .  The  person  must  be  charged  with 
treason,  felony  or  other  crime.  2.  He  must  be  a  fugitive  from 
justice. 

In  regard  to  the  first  of  these  statutory  conditions  it  is  the 
practice  of  executives,  and  it  seems  to  be  supported  by  judicial 
decision,  to  look  beyond  the  papers  presented  to  ascertain  if 
possible  whether  there  is  some  other  motive  lurking  behind 
that  which  appears  upon  the  face  of  the  papers. 

In  the  case  of  the  State  vs.  Moses  Kahn,  the  following  facts 
existed:  Kahn  committed  an  offense  in  Pennsylvania.  In  fact, 
he  committed  several  offenses  of  the  same  nature  against  sev- 
eral different  people  and  firms.  He  fled  to  Ohio.  A  requisi- 
tion was  issued  by  the  Governor  of  Pennsylvania  upon  the 
Governor  of  Ohio  upon  indictment  for  one  of  these  offenses. 
Governor  Foster,  of  Ohio,  issued  the  warrant  and  he  was  taken 
back.  Before  he  reached  Philadelphia,  however,  where  the  of- 
fense was  committed,  a  compromise  was  effected,  he  paid  the 
money  of  which  the  party  claimed  to  be  defrauded  and  was  re- 
leased. 

Immediately  some  of  the  others,  who  had  been  similarly  de- 
frauded, had  him  indicted  and  the  Governor  of  Pennsylvania 
issued  his  requisition  upon  the  Governor  of  Ohio  again,  Kahn 
having  returned  to  this  State.  Governor  Foster  this  time  re- 
fused to  issue  the  warrant  for  his  arrest  and  removal,  upon  the 


84  HOW   TO   PROCEED. 

ground  that  his  confidence  had  been  abused  before,  the  pro- 
cesses and  the  great  seal  of  the  State  being  used  to  force  the 
collection  of  a  debt  due  in  Pennsylvania,  and  he  would  not  per- 
mit this  thing  to  be  done  again. 

The  Governor's  decision  in  cases  of  this  kind  is  final. 
There  is,no  reviewing  court,  no  power  that  can  compel  him  to 
alter  his  decision  or  issue  his  warrant.  The  point  seems  to  be 
that  while  the  papers  themselves  are  regular,  and  charge  a 
crime,  and  state  that  the  fugitive  is  wanted  solely  for  the  pur- 
pose of  punishment,  still  when  people  have  been  defrauded  out 
of  money  and  the  offender  offers  to  make  them  whole  with  the 
quiet  understanding  that  the  criminal  prosecution  will  be 
dropped,  the  temptation  is  too  great  for  the  average  mortal  to 
withstand — ninety-nine  times  out  of  a  hundred  the  money  will 
be  accepted.  So  that  a  very  slight  degree  of  evidence  that  the 
parties  desire  to  secure  the  return  of  the  fugitive  for  the  pur- 
pose of  collecting  a  claim  will  be  sufficient  to  decide  the  execu- 
tive not  to  issue  his  warrant. 

A  case  which  illustrates  the  right  of  the  Governor  upon 
whom  the  requisition  is  made  to  consider  circumstances  out- 
side of  and  beyond  the  papers  as  presented  to  him  is  that  of 
Gaffigan  and  Merrick,  whom  the  authorities  of  Pennsylvania 
attempted  to  extradite  from  the  State  of  Illinois  upon  an  in- 
dictment charging  these  men  with  murder.  The  facts  briefly 
were  these:  The  indictment  charged  these  men  with  the  murder 
of  one  Michael  Durkin  in  the  County  of  Schuylkill,  Pennsyl- 
vania. On  the  ist  day  of  March,  1865,  not  long  after  the  mur- 
der, no  arrest  having  been  made  or  indictment  returned,  Gaffi- 
gan and  Merrick  left  Pennsylvania  and  went  to  Illinois.  An 
indictment  was  returned  against  them,  however,  in  the  month 
of  March,  of  the  same  year,  at  the  court  of  Oyer  and  Terminer, 
of  Schuylkill  County.  There  was  no  evidence  that  they  at- 
tempted to  conceal  their  destination.   In  1867  they  settled  perma- 


CASES  AND   DECISIONS.  85 

nently  in  the  city  of  Springfield,  Illinois,  where  they  went  into 
business  and  became  well  known  and  respected  citizens.  One 
of  them  did  business  for  years  on  one  of  the  principal  streets  of 
Springfield  and  held  the  office  of  County  Inspector  of  Mines,  by 
appointment  of  the  Board  of  Supervisors  of  Sangamon  County. 
The  other  acted  as  School  Director  of  the  town  of  Woodside  in 
the  same  County.  Both  went  under  their  true  names  and 
showed  themselves  as  publicly  as  any  other  citizens.  Both 
had  families.  Merrick  was  married  when  he  came  to  the  State 
and  Gaffigan  married  respectably  in  the  State.  Thus  both 
men  were  in  constant  and  frequent  communication  with  old 
friends  in  Schuylkill  County,  Pa.  At  one  time  Mrs.  Merrick 
with  four  of  her  children  visited  their  old  home  in  Pennsyl- 
vania and  spent  some  weeks  there  visiting  old  friends,  the  resi- 
dence of  herself  and  husband  at  Springfield  being  known  and 
spoken  of  frequently  among  her  acquaintances,  as  is  usual  when 
persons  visit  a  former  place  of  abode.  Gaffigan's  father  left 
St.  Clair,  Pennsylvania,  the  place  where  the  murder  was  al- 
leged to  have  been  committed  in  1870,  for  the  avowed  purpose 
of  living  with  his  son  in  Springfield,  111.  The  old  man  died  in 
Springfield  and  the  fact  of  his  death  was  at  once  telegraphed 
to  one,  Conroy,  a  constable  of  St.  Clair,  Pa.,  and  a  witness 
whose  name  was  indorsed  on  the  indictment.  The  remains  of 
the  elder  Gaffigan  were  taken  back  to  St.  Clair  and  interred  in 
the  presence  of  a  large  number  of  people.  Many  people  from 
Pennsylvania  visited  both  Merrick's  and  Gaffigan's  in  Spring- 
field. Others  came  and  renewed  their  acquaintances  and  lo- 
cated. Some  became  permanent,  others  returned.  These 
people  repeatedly  wrote  to  their  friends  in  St.  Clair  of  the  pros- 
perity of  Merrick  and  Gaffigan  in  Springfield.  The  brother  of 
one  of  these  men  who  was  also  included  in  the  same  indict- 
ment for  the  same  crime  surrendered  himself,  was  tried  and 
acquitted.     The  men  came  to  Springfield  poor,  but  by  industry 


86  HOW   TO    PROCEED. 

and  frugality  acquired  decent  homes  and  always  bore  irre- 
proachable characters.  They  never  concealed  who  they  were 
nor  their  former  place  of  residence. 

The  requisition  for  these  persons  was  presented  to  Governor 
S.  M.  Cullom,  at  Springfield,  on  the  4th  day  of  December,  1878, 
over  thirteen  years  after  the  crime  was  alleged  to  have  been  com- 
mitted in  Pennsylvania.  It  was  stated  on  behalf  of  those  who 
desired  their  extradition  that  the  prosecutor  of  the  county  of 
Schuylkill,  who  was  in  office  at  the  time  said  indictment  was 
found,  and  most,  if  not  all,  of  his  successors  up  to  a  very 
recent  date,  were  ignorant  of  the  whereabouts  of  the  persons. 

In  regard  to  this  point  Governor  Cullom  thought  that  if  the 
prosecutors  did  not  know  their  whereabouts,  it  was  because 
they  did  not  take  the  slightest  trouble  to  inquire. 

The  discussion  before  the  Governor  came  up  in  this  way: 

Upon  the  presentation  of  the  requisition,  ever)'thing  seem- 
ing regular  and  in  accordance  with  the  law,  and  the  Governor 
having  no  personal  acquaintance  with  the  parties  or  the  facts, 
he  issued  his  warrant  for  the  arrest  and  return  of  these  men  as 
fugitives  from  justice.  They  were  arrested,  but  before  they 
were  surrendered  to  the  agent  of  the  State  of  Pennsylvania  ap- 
plication was  made  to  the  Governor  to  revoke  his  warrant, 
and  all  the  facts  as  above  stated  were  brought  out. 

The  Governor  delivered  a  very  exhaustive  and  elaborate 
opinion,  which  we  regret  we  have  not  space  to  give  here  in  full. 
We  quote  some  parts  tending  to  show  his  right  or  duty  to  con- 
sider elements  outside  the  papers  themselves : 

"It  is  urged  by  those  who  support  the  requisition  of  the 
Governor  of  Pennsylvania  that  I  have  no  discretion  in  the 
matter,  but  must  surrender  the  men  if  the  papers  presented  are 
regular  on  their  face.  And  this  is  to  my  mind  the  most  im- 
portant question :  Have  I  the  right  to  consider  any  extraneous 
facts — the  lapse  of  time,  passiveness  of  the  public  prosecutor  of 


CASES  AND   DECISIONS.  87 

Pennsylvania,  the  hardships  of  respectable  families  in  this 
State,  or  any  other  matter  beyond  the  very  letter  of  the  record? 

"The  Supreme  Court  of  the  United  States,  in  the  celebrated 
case  of  Kentucky  vs.  Dennison,  made  use  of  language  which 
would  seem  to  justify  the  conclusion  that  the  Governor  of  a 
State  to  whom  a  requisition  is  presented,  demanding  the  return 
of  an  alleged  fugitive  from  justice,  has  only  a  ministerial  duty 
to  perform,  and  has  no  authority  to  look  beyond  the  record. 
Howard  66. 

"The  words  used  by  the  court  are  very  strong,  and  if  they 
are  to  be  taken  without  qualification,  would  seem  to  be  conclu- 
sive. Yet  it  is  entirely  certain  that  notwithstanding  that  de- 
cision, it  has  been  the  practice  of  the  *  Governors  of  many 
States  to  look  beyond  the  papers  presented.  It  is  clear  that 
where  a  prisoner  is  held  to  answer  a  criminal  charge,  in  the 
State  where  found,  he  will  not  be  surrendered  upon  the  de- 
mand of  the  executive  authority  of  another  State.  This  has 
always  been  the  practice  in  Illinois,  as  well  as  in  all  other 
States  so  far  as  I  know.  But  since  the  case  of  Kentucky  vs. 
Dennison,  the  Supreme  Court  of  the  United  States  itself  has 
conclusively  shown  that  the  words  used  by  the  court,  in  the 
case  last  cited,  were  not  to  be  taken  without  qualification.  In 
Tailor  vs.  Taintor  (16  Wallace,  p.  j66)  a  peculiar  state  of  facts 
was  shown.  One  McGuire  was  indicted  in  Connecticut  and 
gave  bail.  He  then  went  to  the  State  of  New  York,  but  was 
taken  from  there  on  a  requisition  from  the  Governor  of  Maine, 
and  was  imprisoned  in  the  State.  He  did  not  appear  to  an- 
swer the  indictment  in  Connecticut,  and  forfeited  his  recogniz- 
ance. Judgment  being  given  against  his  bondsmen,  they 
carried  the  case  to  the  Supreme  Court  of  the  United  States, 
where  the  judgment  was  affirmed.  In  discussing  the  questions 
presented  the  court  say: 

"'Had  the  facts  been  made  known  to  the  executive  of  New 


88  HOW   TO    PROCEED. 

York  in  time  it  is  to  be  presumed  he  would  have  ordered 
MeGuire  to  be  delivered  to  them  (the  bondsmen),  and  not  the 
authorities  of  Maine.' 

"Again  on  page  374  the  court  say:  'It  is  true  the  constitu- 
tional provision  and  the  law  of  congress  under  which  the  arrest 
and  delivery  were  made  are  obligatory  on  every  State,  .and  a 
part  of  the  law  of  every  State.  But  the  duty  enjoined  is  several 
and  not  joint,  and  every  Governor  acts  independently  and  for 
himself.  "There  can  be  no  joint  demand  or  refusal.  In  the 
event  of  refusal,  the  State  making  the  demand  must  submit. 
There  is  no  alternative.  In  the  case  of  MeGuire  no  impedi- 
ment appeared  to  the  Governor  of  New  York,  and  he  properly 
yielded  obedience.  The  Governor  of  Connecticut,  if  applied 
to,  might  have  rightfully  postponed  compliance.  If  advised 
in  season  he  might  have  intervened  and  by  a  requisition 
have  asserted  the  claim  of  Connecticut.  It  would  then  have 
been  for  the  Governor  of  ANew  York  to  decide  between  the 
conflicting  demands.  Whatever  the  decision,  if  the  proceed- 
ings were  regular,  it  would  have  been  conclusive.  There, 
could  have  been  no  review  and  no  inquiry  going  behind  it.' 

"  It  thus  appears  that  the  language  used  in  Kentucky  vs. 
Dennison  is  not  unqualified,  that  an  executive  officer  to  whom 
a  requisition  is  presented  may  do  something  more  than  inquire 
into  the  regularity  of  the  record,  and  that  however  regular  the 
record  there  still  may  be  impediments  of  which  the  executive  of 
whom  the  demand  is  made  must  be  the  judge.  I  refer  to  this 
case,  and  to  the  practice  in  this  State  and  other  States,  for  the 
purpose  of  showing  that  whether  my  duties  be  regarded  as 
purely  ministerial  or  quasi  judicial,  I  am  not  only  empowered, 
but  required  to  consider  certain  extraneous  facts  not  appearing 
in  the  record  presented  to  me." 

This  decision  of  Governor  Cullom,  that  the  Governor  on 
whom  the  requisition  is  made  is  both  empowered  and  required 


CASES  AND   DECISIONS.  89 

to  consider  facts  outside  the  record  is  now  the  recognized  rule 
of  practice.  The  Governor's  reference  to  the  United  States 
Supreme  Court  decision  in  Tailor  vs.  Taintor,  quoted  above, 
affords  the  highest  authority  for  our  statement  that  the  Gov- 
ernor's decision  is  final ;  there  is  no  appeal. 

In  regard  to  the  second  condition  requisite  to  the  extra- 
dition of  a  fugitive,  viz.,  that  the  person  must  be  a  fugitive 
from  justice,  the  same  case  of  Merrick  and  Gaffigan  affords  a 
good  example.  And  it  was  really  upon  this  latter  point  that 
the  Governor  rendered  his  decision.  The  Governor  said  that 
he  considered  it  his  bounden  duty  to  inquire  whether  Gaffigan 
and  Merrick  were  fugitives  from  justice,  and  surrender  or  re- 
fuse them  as  he  fotind  the  facts  to  be. 

Mr.  Hurd,  in  his  work  on  Habeas  Corpus,  says  that  in  order 
to  constitute  a  person  a  fugitive  from  justice  "there  must  be  an 
actual  fleeing  from  justice,  and  of  this  the  Governor  of  the 
State  of  whom  the  demand  is  made,  as  well  as  the  one  making 
it,  should  be  satisfied." 

Governor  Cullom,  after  admitting  that  the  fact  that 
Merrick  and  Gaffigan  left  the  State  of  Pennsylvania  shortly 
after  the  homicide  was  some  evidence  that  they  were  fugitives 
from  justice,  proceeds  as  follows  with  his  able  argument: 

"For  nearly  fourteen  years  they  have  been  in  frequent  and 
open  communication  with  their  friends  in  the  place  where  the 
crime  is  alleged  to  have  been  committed.  During  that  long 
period  their  residence  has  been  so  generally  known  and  so  en- 
tirely unconcealed,  that  the  officers  of  justice  could  be  ignorant 
of  it  only  because  they  made  no  effort  to  find  it  out.  I  am 
aware  that  against  the  crime  of  murder  there  is  no  limitation, 
but  that  is  not  the  question.  Does  the  character  of  a  fugitive 
from  justice  once  attaching  to  a  man  never  leave  him  under 
any  circumstances?  Can  he  not  purge  that  taint  by  showing 
himself  for  many  years  to  all  the  world  without  disguise  and 


90  HOW   TO   PROCEED. 

allowing  the  ministers  of  justice  all  proper  means  of  knowing 
his  whereabouts,  and  prosecuting  him  if  they  so  desire?  Sup- 
pose these  men  had  voluntarily  visited  the  place  where  the 
crime  is  alleged  to  have  been  committed,  and  after  remaining 
there  for  a  time  had  returned  to  Illinois,  would  they  still  be 
fugitives  from  justice?  I  think  not.  That  character  would 
have  been  thrown  off.  And  if  so,  may  not  the  same  result 
arise  from  many  years  of  publicity,  free  communication  with 
friends,  and  the  entire  absence  of  concealment?  Such  a  course 
is,  in  my  opinion,  equivalent  to  a  voluntary  return.      *      *     * 

"In  my  opinion,  Gaffigan  and  Merrick  are  no  longer  fugi- 
tives from  justice,  if  they  ever  were  so.  Had  they  concealed 
themselves,  or  had  there  been  any  difficulty  in  ascertaining 
where  they  were,  upon  due  inquiry  by  the  officers  of  justice, 
my  conclusion  would  have  been  wholly  different.  But  I  believe 
a  man  may,  by  long  years  of  good  conduct,  and  by  showing 
himself  to  the  world  without  concealment,  outlive  the  char- 
acter of  a  fugitive  from  justice,  more  particularly  where  the 
ministers  of  justice  charged  with  his  apprehension  practically 
abandon  the  charge  against  him  for  nearly  half  the  period  of 
human  life.         *         *         * 

"Believing,  then,  that  neither  positive  law  nor  any  consid- 
erations founded  upon  justice  require  the  surrender  of  the  men, 
I  must  respectfully  refuse  to  comply  with  the  requisition  of 
the  Governor  of  Pennsylvania.  The  warrant  heretofore  issued 
is  revoked  and  Gaffigan  and  Merrick  ordered  to  be  discharged. 

S.  M.  Cullom,  Governor." 

EXTRADITABLE   CRIMES. 

The  words  used  in  the  Constitution  of  the  United  States 
are  "treason,  felony,  or  other  crime."  Two  offenses  are  par- 
ticularly named  by  their  common  law  titles,  treason  and  felony. 
If  the  word  crime  is  used  in  the  Constitution   in  the  same 


EXTRADITABLE  CRIMES.  9 1 

meaning  that  attaches  to  it  in  criminal  courts  and  in  all  crimi- 
nal practice,  ancient  and  modern,  State  and  national,  there  is 
certainly  no  difficulty  in  determining  what  the  word  includes. 
Every  infraction  of  the  law  that  is  punishable  or  indictable  is  a 
crime.  It  reaches  as  far  in  heinousness  and  gravity  as  felony 
and  down  to  the  smallest  misdemeanor.  It  has  been  contended, 
however,  that  the  word  crime  in  the  Constitution  has  a  more 
restricted  meaning.  In  1 790  the  Attorney-General  of  Virginia 
advised  the  Governor  of  the  State,  Randolph,  not  to  extradite 
three  fugitives  from  the  justice  of  Pennsylvania,  who  were  de- 
manded by  Governor  Mifflin  of  that  State,  giving  as  a  reason 
that  the  phrase  "or  other  crime"  found  in  the  Constitution  has 
"reference  only  to  crimes  similar  in  character  to  treason  and 
felony,  and  that  the  act  charged  must  be  a  crime  in  that  sense, 
under  the  laws  of  the  State  upon  which  this  demand  is  made," 
and  that  the  offense  charged  in  this  case  was  not  a  crime  of 
this  kind  by  the  laws  of  Virginia,  "but  only  a  trespass  or 
breach  of  the  peace." 

In  1839  Governor  Seward,  of  New  York,  refused  to  deliver 
Up  to  the  State  of  Virginia  three  persons  who  were  demanded 
of  him  by  the  Governor  of  Virginia,  charged  by  affidavit  with 
having  feloniously  stolen  and  taken  away  a  negro  slave,  the 
property  of  one,  Colley.  The  grounds  for  his  refusal  were 
that  in  his  opinion  the  constitutional  "provision  applies  only 
to  those  acts  which,  if  committed  in  the  jurisdiction  of  the 
State  in  which  the  person  accused  is  found,  would  be  treason- 
able, felonious,  or  criminal  by  the  laws  of  that  State."  The 
act  charged  was  a  crime  in  Virginia,  but  not  in  New  York. 

Subsequently  Governor  Dennison,  of  Ohio,  upon  substan- 
tially the  same  grounds,  refused  to  extradite  one,  Willis  L,ago^ 
a  fugitive  from  the  justice  of  Kentucky,  charged  with  having 
assisted  a  slave  to  escape  from  her  owner,  which  was  a  crime 
in  Kentucky,  but  not  in  Ohio. 


92  HOW   TO   PROCEED. 

Opinion  of  the  U.  S.  Supreme  Court. — This  case  was  car- 
ried to  the  Supreme  Court  of  the  United  States,  the  State  of 
Kentucky  asking  the  court  to  issue  a  writ  of  mandamus  ad- 
dressed to  the  Governor  of  Ohio,  commanding  him  to  comply 
with  the  requisition  of  the  Governor  of  Kentucky  for  the  de- 
livery of  this  fugitive  from  justice.  The  court  declined  to 
grant  the  writ,  holding  that  "if  the  Governor  of  Ohio  refuses 
to  discharge  this  duty,  there  is  no  power  delegated  to  the  gen- 
eral government,  either  through  the  judicial  department  or  any 
other  department,  to  use  any  coercive  means  to  compel  him." 

It  will  be  observed  that  the  Supreme  Court  did  not  refuse 
the  writ  because  they  thought  Governor  Dennison  was  right, 
but  because  they  had  no  power  to  compel  him  to  act  in  the 
matter.  This  is  a  stronger  deliverance  from  the  Supreme 
Court  than  the  one  previously  quoted  from  Tailor  vs.  Taintor 
as  to  the  finality  of  the  Governor's  action  in  cases  of  re- 
quisitions upon  him.  He  can  not  be  compelled  even  to  do  his 
duty.  A  gross  violation  of  duty  in  this  respect  could  only 
be  reached  by  impeachment,  and  that  would  not  undo  his  act. 
In  stating  the  opinion  of  the  court  in  the  above  mandamus 
suit,  Kentucky  vs.  Dennison,  Chief  Justice  Taney  gave  a  clear 
and  elaborate  exposition  of  the  constitution  relating  to  Inter- 
State  extradition,  and  the  language  is  so  strong  as  to  show  the 
opinion  of  the  court  clearly  to  be  that  Governor  Dennison  was 
wrong,  that  Governor  Seward  of  New  York  was  wrong,  and 
that  the  Attorney-General  of  Virginia  was  wrong  in  his  ad- 
vice to  Governor  Randolph,  as  early  as  1790.  We  quote 
from  Chief  Justice  Taney's  opinion: 

"  Looking  at  the  language  of  the  clause,  it  is  difficult  to 
Comprehend  how  any  doubt  could  have  arisen  as  to  its  mean- 
ing and  construction.  The  words  '  treason,  felony,  or  other 
crime,'  in  their  plain  and  obvious  import,  as  well  as  in  their 
legal  and  tehnical  sense,  embrace  every  act  forbidden  and  made 


EXTRADITABLE   CRIMES.  93 

punishable  by  the  law  of  the  State.  The  word  '  crime '  of 
itself  includes  every  offense,  from  the  highest  to  the  lowest  in 
the  grade  of  offenses,  and  includes  what  are  called  '  misde- 
meanors,' as  well  as  treason  and  felony." 

In  another  connection  in  the  same  opinion  the  Chief  Jus- 
tice remarks : 

"  Looking,  therefore,  to  the  words  of  the  Constitution — to 
the  obvious  policy  and  necessity  of  this  provision  to  preserve 
harmo.iy  between  States,  and  order  and  law  within  their  re- 
spective borders,  and  to  its  early  adoption  by  the  colonies, 
and  then  by  the  Confederated  States,  whose  mutual  interest  it 
was  to  give  each  other  aid  and  support  whenever  it  was  needed 
— the  conclusion  is  irresistible  that  this  compact  engrafted  in 
the  Constitution  included,  and  was  intended  to  include,  every 
offense  made  punishable  by  the  law  of  the  State  in  which  it 
was  committed,  and  that  it  gives  the  right  to  the  executive 
authority  of  the  State  to  demand  the  fugitive  from  the  execu- 
tive authority  of  the  State  in  which  he  is  found ;  that  the  right 
given  to  demand  implies  that  it  is  an  absolute  right ;  and  it 
follows  that  there  must  be  a  correlative  obligation  to  deliver, 
without  any  reference  to  the  character  of  the  crime  charged, 
or  to  the  policy  or  laws  of  the  State  to  which  the  fugitive  has 
fled." 

The  State  Courts. — This  construction  of  the  meaning  of 
the  Constitution  has  been  adopted  by  decisions  in  nearly  all 
the  States  in  proceedings  on  habeas  corpus. 

The  opinion  of  the  Supreme  Court  of  New  York,  delivered 
by  Chief  Justice  Savage,  in  The  Matter  of  Clark,  will  be  found 
in  9  Wend.  212.  The  court  say  :  "  The  language  is  '  treason, 
felony,  or  other  crime.'  The  word  '  crime  '  is  synonymous 
with  the  word  '  misdemeanor,'  4  B/ackstone's  Com.,  5,  and  in- 
cludes even-  offense  below  felony  punishable  by  indictment  as 
an  offense  against  the  public." 


94  HOW    TO    PROCEED. 

The  Court  of  Appeals,  of  New  York,  in  The  People,  ex. 
re/.  Lawrence  vs.  Brady,  56  N.  Y.  182,  said:  "The  word 
1  crime '  in  the  clause  of  the  Constitution,  which  has  been 
quoted,  embraces  every  act  forbidden  and  made  punishable  hy 
the  law  of  a  State,  and  the  right  to  demand  the  surrender  of 
fugitives  from  justice  extends  to  all  cases  of  the  violation  of 
its  criminal  law.         *         *         *  The   obligation   to  sur- 

render for  an  act  which  is  made  criminal  by  the  law  of  the  de- 
manding State,  but  which  is  not  criminal  in  the  State  upon 
which  the  demand  is  made,  is  the  same  as  if  the  alleged  act 
was  a  crime  by  the  law  of  both." 

The  Supreme  Court  of  Massachusetts,  in  Brown's  Case,  112 
Mass.,  409,  said  :  "  The  words  of  the  provision  of  the  Consti- 
tution and  laws  of  the  United  States,  and  of  the  statutes  of 
this  Commonwealth,  the  history  of  those  provisions,  and  the 
judicial  expositions  of  them,  conclusively  establish  that  the 
authority  of  the  Governor  of  this  Commonwealth  to  order  the 
delivery  of  fugitives  from  the  justice  of  another  State  in  the 
Union  extends  to  a  person  appearing  to  be  charged  with  any 
crime  whatever  in  the  State." 

The  Supreme  Court  of  Indiana,  in  Morton  vs.  Skinner,  48 
Ind.,  123,  holds  that  a  misdemeanor  is  an  extraditable  offense. 

The  Supreme  Court  of  North  Carolina,  in  The  Matter  of 
Hughes,  Phill.  L.,  57,  held  that  "  the  constitutional  require- 
ment for  the  surrender  of  fugitives  from  justice  applies  to 
those  charged  with  statutory  as  well  as  common  law  crimes." 

The  Supreme  Court  of  Georgia  declared  in  Johnston  vs. 
Riley,  13  Ga.,  97,  that  "when  the  Governor  of  a  State  makes 
a  requisition,  under  the  Constitution  of  the  United  States,  on 
the  Governor  of  another  State,  for  the  return  of  a  fugitive 
from  justice,  who  had  escaped  from  the  former  to  the  latter 
State,  if  the  requisition  is  made  with  all  requisite  formalities, 
it  is  his  imperative  duty  to  comply,  without  inquiring  whether 


EXTRADITABLE   CRIMES.  95 

the  fugitive  has  committed  a  crime  according  to  the  laws  of 
the  State  to  which  he  fled." 

In  24,  American  Jurist,  226,  we  find  the  opinion  of  the 
Supreme  Court  of  Maine,  delivered  as  early  as  1837,  at  the  re- 
quest of  the  Governor  of  the  State.  It  is  as  follows :  "  In  our 
opinion  it  is  the  duty  of  the  executive  of  this  State  to  cause 
to  be  delivered  over  to  the  agent  of  another  State,  at  the  re- 
quest of  the  executive  thereof,  a  citizen  of  this  State,  charged 
by  indictment  with  the  fraud  before  set  forth,  which,  being  in- 
dicted in  such  State,  may  be  presumed  to  be  there  regarded  as  a 
crime,  if  the  executive  of  this  State  is  satisfied  that  such  citi- 
zen has  fled  from  justice  from  the  State  making  the  demand, 
and  not  otherwise." 

The  Supreme  Court  of  Vermont,  in  the  case  of  In  re 
Greenough,  31  Vt.,  279,  in  which  Greenough  had  obtained 
money  under  false  pretense  in  Illinois,  and  his  extradition  from 
Vermont  was  resisted  upon  the  ground  that  the  words  of  the 
Constitution  "  or  other  crime  "  should  be  confined  to  crimes  of 
great  atrocity,  used  the  following  language  :  "  This  provision 
in  the  Constitution  and  laws  of  Congress  has  received  a  prac- 
tical, uniform  construction  from  Maine  to  Georgia,  from  an 
early  day  in  our  judicial  history,  if,  indeed,  it  can  be  said  to 
admit  of  construction.  It  has  also  been  the  subject  matter  of 
repeated  judicial  determination,  and  he  must,  I  think,  be  a  bold 
man,  who  at  the  present  day  is  ready  to  hold  that  the  subject 
matter  of  the  complaint  against  Greenough  is  not  within  the 
Constitution  and  laws  of  Congress.  The  language  is  broad, 
and  the  crime  charged  is  within  its  letter,  and,  I  apprehend, 
equally  within  the  reason  and  spirit  of  the  provision." 

In  the  old  Articles  of  Confederation  the  words  used  were 
"  treason,  felony,  or  high  misdemeanor."  "  High  misde- 
meanor "  is  a  term  of  vague  import  and  there  is  no  doubt  that 
the  words  "  or  other  crime  "  were  substituted  in  framing  the 


96  how  to  proceed. 

Constitution  both  for  the  purpose  of  making  the  language  en- 
tirely definite,  and  also  to  make  extraditable  every  .species  of 
misdemeanor  punishable  by  indictment,  whether  it  be  common 
law  or  statutory  crime. 

The  above  opinions  of  the  Supreme  Court  of  the  United 
States,  and  of  the  various  State  courts,  which  might  be  sup- 
plemented by  many  others  of  the  same  tenor,  settle  beyond 
dispute  two  legal  propositions  :  i .  The  words  of  the  Constitu- 
tion and  act  of  Congress,  "  treason,  felony,  or  other  crime,"  in- 
clude all  crimes,  whether  common  law  crimes  or  made  so  by 
statutory  enactment,  whether  felony  or  a  petty  misdemeanor. 
2.  That  it  is  immaterial  whether  the  offense  charged  be  a  crime 
in  the  State  to  which  the  person  has  fled,  and  from  which  he 
is  demanded,  or  not,  so  long  as  it  is  an  indictable  offense  in  the 
State  in  which  it  was  committed. 

Petty  Misdemeanors. — It  is  not  probable  that  the  labor  of 
inter-State  extradition  will  ever  become  burdensome  on  ac- 
count of  the  fact  that  minor  offenses  are  extraditable,  because, 
in  the  first  place,  a  person  who  has  committed  a  petty  offense 
will  very  seldom  flee  from  his  home  to  avoid  the  consequences: 
and,  secondly,  if  he  should  flee,  the  State  would  rarely,  if  ever, 
pursue  him  into  another  State  for  so  small  an  infraction  of  its 
statutory  law.  Still,  it  must  be  admitted,  that  if  a  person 
should  flee  from  a  petty  misdemeanor  into  another  State,  and 
the  authorities  should  pursue  him  in  regular  form,  and  accord- 
ing to  law,  the  obligation  of  the  State  to  which  he  fled  to  sur- 
render him  would  be  just  as  great  as  though  his  crime  were  a 
felony. 

The  Flight  from  Justice. — Before  dismissing  the  subject  of 
inter-State  extradition  we  desire  to  add  a  few  observations  on 
two  or  three  collateral  points.  We  have  already  stated  that 
one  of  the  constitutional  pre-requisites  to  the  extradition  of  a 
person  from  one  State  to  another,  is  that  he  be  a  fugitive  from 


THE    FLIGHT   FROM   JUSTICE.  97 

justice.  It  often  becomes  the  most  important  question  to  be 
decided  in  a  case,  whether  the  person  charged  with  a  crime  is 
a  fugitive  from  justice.  Governor  Cullom's  decision,  previously 
quoted,  turned  on  this  point.  The  language  of  the  Constitu- 
tion covering  this  point  is,  "  who  shall  flee  from  justice,  and  be 
found  in  another  State"  The  act  of  Congress  says  that 
"  whenever  the  executive  authority  of  any  State  or  Territory 
demands  any  person  as  a  fugitive  from  justice,  of  the  executive 
authority  of  any  State  or  Territory  to  which  such  person  has 
fled"  etc.  There  must  be  a  fleeing  from  one  State  and  a  find- 
ing in  the  other,  the  presence  there  being  the  result  of  the 
fleeing.  The  conjunction  connecting  the  two  parts  is  copula- 
tive. Both  are  necessary.  If  the  language  were  "  who  shall 
flee  from  justice  or  be  found  in  another  State,"  the'  conditions 
would  be  different,  either  fact  would  suffice  for  his  extradition. 

Fleeing  implies  bodily  locomotion.  It  is  a  movement  in 
the  exercise  of  the  person's  own  will,  of  his  own  choice.  His 
removal  from  one  State  to  another  by  force  or  by  legal  process 
would  not  constitute  a  fleeing  from  justice  on  his  part.  The 
fleeing  must  be  his  own  voluntary  act. 

His  voluntary  motion  from  one  State  to  another,  however, 
is  still  not  enough  to  make  him  a  fugitive.  His  motive  must 
be  to  escape  justice,  or  to  avoid  the  punishment  of  crime  by. 
placing  his  person  where  the  same  liability  does  not  exist.  Not 
every  person  who  goes  from  one  State  to  another,  of  his  own 
free  will,  and  is  found  there,  is  a  fugitive.  He  must  go  there 
to  avoid  punishment  for  crime. 

In  view  of  this  fact,  it  is  proper  that  some  evidence  be 
taken  by  both  the  executives  as  to  the  fact  of  the  fleeing,  first 
by  the  Governor  making  the  requisition,  and  by  him  presented 
to  the  Governor  to  whom  he  addresses  the  requisition.  This 
evidence  must  be  legal,  not  hearsay.  It  must  be  under  oath 
and  must  be  sufficient  to  make  out  a  prima  facie  case  of  flight. 
7 


98  HOW   TO    PROCEED. 

This  is  parti}-  the  object  of  the  affidavits  presented  to  the  Gov- 
ernor. It  is  not  sufficient  for  the  Governor  to  know  that  the 
person  is  charged  with  crime;  he  must  also  know  that  he  is  a 
fugitive  as  well  as  a  criminal,  before  he  is  authorized  to  issue 
his  requisition.  The  decisions  on  this  point  are  conclusive 
and  from  the  best  authorities. 

The  fact  that  a  party  charged  with  crime  in  one  State  is 
found  in  another  raises  the  presumption  that  he  is  a  fugitive, 
but  it  is  not  conclusive.  If  this  presumption  were  conclusive 
"a  person  might  be  arrested  in  any  State,  and  surrendered  to 
another  for  trial  on  the  mere  showing  that  in  the  latter  State 
an  indictment  had  been  found,  or  a  complaint  made  in  due 
form  against  him.  By  this  means  one  might  be  punished  for 
constructive  presence  and  participation  in  an  offense  committed, 
if  at  all,  at  a  great  distance,  as  was  actually  attempted  in  the 
noted  case  of  the  Mormon  prophet  Smith,  who  was  arrested  as 
a  fugitive  from  a  State  where  he  had  never  been,  and  was  or- 
dered to  be  surrendered  for  trial  for  offenses  against  laws  to 
which  he  had  never  been  subject.  Such  a  construction  would 
be  intolerable."—/?^/^  Cooley  in  Princeton  Review,  /any., 
1879,  p,  164. 

Difficult  Questions. — A  man  in  Indiana  near  the  Eastern 
line  of  the  State  shot  and  killed  a  man  standing  beyond  the 
line  and  in  the  State  of  Ohio.  The  murderer  did  not  flee,  but 
simply  remained  in  the  State  of  Indiana.  Can  he  be  extradited 
into  Ohio  as  a  "fugitive  from  justice?" 

A  person  in  Kentucky  sent  an  infernal  machine  by  express 
to  a  person  in  Georgia  which  exploded  and  killed  the  receiver 
when  he  attempted  to  open  it.  Is  the  Governor  of  Kentucky 
under  obligation  to  issue  his  warrant  for  the  arrest  and  re- 
moval of  this  person  to  Georgia  as  a  fugitive  from  justice? 

A  man  in  Maine  sends  a  deadly  poison  to  an  innocent  per- 
son in  New  York,  by  mail,  with  written  instructions  to  give 


DIFFICULT   QUESTIONS.  99 

it  to  a  sick  friend  as  it  will  effect  his  cure.  The  poison  is  given 
and  death  ensues.     Can  the  murderer  in  Maine  be  extradited? 

A  merchant  in  Topeka,  Kansas,  obtains  a  bill  of  goods  from 
a  house  in  Chicago,  Illinois,  by  false  and  fraudulent  represen- 
tations.    Can  he  be  taken  to  Chicago  for  trial? 

It  has  been  claimed  by  some  that  the  criminal,  in  cases 
similar  to  those  given  above,  while  not  actually  and  personally 
in  the  State  where  the  effect  of  his  act  took  place,  was  never- 
theless constructively  present  and  hence  was  constructively  a 
fugitive  from  justice.  The  question  has  been  much  discussed 
in  the  courts  and  the  decisions  have  not  been  uniform.  The 
question  is,  where  is  the  crime  committed?  In  and  against 
the  jurisdiction  where  the  offender  actually  was  at  the  time  of 
the  criminal  action,  or  in  and  against  the  jurisdiction  where 
the  action  was  completed,  the  two  jurisdictions  being  different? 

We  will  not  go  into  the  discussion  of  this  question.  There 
is  only  one  clear  way  over  all  difficulties,  and  that  is  to  con- 
sider that  the  crime  is  committed  at  the  place  where  the  of- 
fender actually  was  at  the  time  of  his  action ;  then  if  he  does 
not  flee  he  can  be  punished  there,  and  if  he  does  he  becomes  a 
fugitive  and  can  be  extradited  without  raising  any  of  the  diffi- 
cult questions  stated  above.  As  a  matter  of  fact,  however,  the 
Constitution  contains  no  provision  for  the  extradition  of  a 
criminal  who  was  not  present  in  the  State  where  he  is  as- 
sumed to  have  committed  the  crime,  and  who  has  not  actually 
fled  from  the  justice  of  the  State.  There  is  no  such  thing  as 
a  constructive  fugitive.  It  is  futile  to  inquire  whether  the 
framers  of  the  Constitution  thought  of  such  a  case.  If  they 
did  they  failed  to  provide  for  it.  We  consider  that  there  can 
be  but  one  answer  to  the  above  questions.  The  persons 
could  not  be  extradited  into  the  States  where  their  action  took 
effect,  according  to  the  Constitution  and  law,  because  they 
were  not  fugitives  from  the  justice  of  those  States. 


IOO  HOW    TO    PROCEED. 

Another  Case. — Johnson,  living  in  Nebraska,  committed  a 
larceny  and  fled  from  the  State  into  Missouri.  While  in  Mis- 
souri he  secretly  committed  murder,  and  was  not  at  the  time 
suspected  of  the  crime.  L,ater  the  Nebraska  authorities  located 
him  in  Missouri  and  brought  him  back  upon  requisition.  He 
was  tried  in  Nebraska  for  the  larceny  and  acquitted.  He  then 
remained  there  and  took  up  his  residence.  Soon  after  this  it 
was  discovered  that  he  committed  the  murder  in  Missouri. 
The  Governor  of  Missouri  demanded  his  delivery  on  the  basis 
of  an  indictment  for  murder.     What  will  be  the  result? 

There  is  no  question  of  the  first  element; — he  is  charged 
with  a  crime  in  Missouri.  He  is  also  found  in  Nebraska,  an- 
other State.  But  is  he  a  fugitive  from  justice?  He  did  not 
flee  from  Missouri.  He  was  forcibly  taken  away  by  process  of 
law  and  against  his  will.  Being  acquitted  of  the  crime  charged 
in  Nebraska  he  decides  to  remain  there,  as  he  has  a  right  to  do. 
Is  he  under  obligation  to  go  back  to  Missouri  and  then  run 
away  in  order  to  make  himself  a  fugitive?  Surely  not.  ,What 
can  be  done?  Nothing,  as  long  as  the  Constitution  of  the 
United  States  is  in  its  present  form.  Removing  him  by  force, 
under  the  circumstances,  no  matter  how  strong  or  perfect  the 
extradition  papers  were  made,  would  be  nothing  short  of  of- 
ficial kidnaping. 

The  Agent's  Powers  and  Duties. — The  Constitution  says 
nothing  about  an  agent.  The  act  of  Congress  assumes  the 
power  of  the  executive  to  appoint  an  agent  and  direct  the 
delivery  to  be  made  "to  such  agent  when  he  shall  appear." 

This  legalizes  the  appointment  of  an  agent.  Governors 
always  appoint  an  agent.  He  is  entrusted  with  all  the  papers, 
including  his  own  commission.  The  only  limitations  are  two, 
one  relating  to  the  time  within  which  the  agent  must  arrive 
to  receive  the  fugitive,  which  is  six  months,  when  he  may  be 
discharged  if  the  agent  do  not  appear.     The  other  is  as  to  the 


DIFFICULT  QUESTIONS.  IOI 

expense  of  the  extradition,  which  must  be  paid  by  the  agent 
for  the  State  making  the  demand. 

Section  5279,  Revised  Statutes  of  the  United  States,  reads: 

"Any  agent  so  appointed,  who  receives  the  fugitive  into  his 
custody,  shall  be  empowered  to  transport  him  to  the  State  or 
Territory  from  which  he  fled.  And  any  person  who,  by  force, 
sets  at  liberty  or  rescues  the  fugitive  from  such  agent  while  sp 
transporting  him,  shall  be  fined  not  more  than  five  hundred 
dollars,  or  imprisoned  not  more  than  one  year." 

The  agent  under  this  law  has  the  powers  of  a  Sheriff  or 
Marshal.  Though  appointed  by  the  Governor  of  a  State  he  is 
nevertheless  acting  under  the  authority  of  the  United  States 
law. 

The  agent  is  not  only  protected  from  persons  who  would 
rescue  his  prisoner  by  force,  but  no  court  has  authority  to  in- 
terfere and  discharge  the  prisoner  after  he  has  received  him 
and  given  his  receipt. 

Only  one  case  of  this  kind  has  ever  come  up  for  judication 
in  this  country,  so  far  as  we  know,  and  in  that  the  above  point 
was  an  incident  rather  than  the  main  feature.  It  is  the  case  of 
In  re  Burke.     The  following  were  the  facts: 

One  Samuel  Frank  was  charged  by  Leopold  Bros.  &  Co., 
of  Chicago,  111.,  of  obtaining  goods  from  them  by  false  pretense 
and  fleeing  from  the  State  into  the  State  of  Minnesota.  A 
requisition  was  issued  and  James  H.  Burke  appointed  agent  to 
receive  him.  The  Governor  of  Minnesota  issued  his  warrant. 
Frank  was  arrested  and  surrendered  to  Burke.  He  started 
with  the  prisoner,  but  in  passing  through  the  State  of  Wiscon- 
sin, on  his  direct  route  to  Chicago,  Frank  in  some  way,  at  St. 
Croix,  secured  an  attorney  and  applying  for  a  writ  of  habeas 
corpus  was  released.  Frank  returned  to  Minnesota  and 
Burke  also  went  back  and  re-arrested  him  in  St.  Paul.  Frank 
was  released  on  a  writ  of  habeas  corpus  in  the  county  court, 


102  HOW   TO    PROCEED. 

and  immediately  had  Burke  arrested  for  false  arrest  and  im- 
prisonment. Burke  applied  to  Judge  Nelson  of  the  District 
Court  of  the  United  States  for  the  District  of  Minnesota  for  a 
writ  of  habeas  corpus.  The  Judge  granted  the  writ,  and,  upon 
the  hearing,  released  him.  The  only  part  of  his  decision  per- 
tinent to  this  question  is  his  remarks  upon  the  action  of  the 
court  of  St.  Croix,  Wis.,  in  interfering  with  the  agent,  Burke, 
while  passing  through  the  State  with  his  prisoner.  We  select 
a  few  sentences  from  his  decision: 

"If  the  prerequisites  of  the  law  of  1793  were  complied  with, 
and  the  warrant  of  the  executive  of  the  State  to  which  the 
fugitive  has  fled  is  issued  on  the  requisition  of  the  executive  of 
the  demanding  State,  accompanied  by  a  copy  of  an  affidavit, 
charging  a  crime,  under  the  laws  of  the  latter,  certified  as 
authentic  by  the  executive,  and  an  arrest  is  made  and  delivery 
to  the  agent  of  the  demanding  State,  then  the  person  so  ar- 
rested is  legally  restrained  of  his  liberty  and  may  be  removed 
to  the  State  having  jurisdiction  of  the  crime.  A  discharge  of 
the  person  under  the  writ  of  habeas  corpus,  by  a  judge  of  any 
court,  whether  State  or  Federal,  would  be  coram  non  judice, 
and  void. 

"This  presents  the  question  whether  the  judge  of  St.  Croix 
County  exceeded  his  jurisdiction  under  the  writ  of  habeas  cor- 
pus, and  his  discharge  of  Frank  is  a  nullity?  I  think  this  action 
of  the  State  court  of  Wisconsin  is  the  first  reported  instance  of 
any  interference  by  the  judiciary  of  a  State  through  whose  ter- 
ritory the  fugitive  from  justice  is  being  transported,  after  the 
concurrent  action  of  the  two  States  alone  interested  in  the 
transaction.         *        *        * 

"The  first  section  of  the  fourth  article  of  the  Constitution 
provides  that  full  faith  and  credit  shall  be  given  to  the  public 
acts,  records  and  judicial  proceedings  of  every  other  State," 

p4-p  5fC  *T*  *t* 


REVOKING  THE  WARRANT.  103 

"The  papers  presented  on  his  return  to  the  writ  of  habeas 
corpus  before  the  State  court  of  Wisconsin,  and  now  by  the  pe- 
titioner before  me,  show  that  all  prerequisites  are  complied 
with,  and  if  'full  faith  is  to  be  given  to  the  public  acts,  records 
and  judicial  proceedings'  of  any  other  State  in  the  State  of 
Wisconsin,  these  papers,  duly  authenticated  under  seals  of  the 
States  of  Minnesota  and  Illinois,  and  signed  by  the  executive 
of  each  State,  are  so  entitled.  If  so,  then  under  the  writ  of 
habeas  corpus,  the  court  in  Wisconsin,  on  discovering,  by  the 
return  of  the  agent,  that  the  person  in  custody  was  held  by  vir- 
tue of  the  Constitution  and  Laws  of  the  United  States  in  re- 
spect of  fugitives  from  justice,  and  the  two  States  interested  in 
the  transaction  had  concurred  in  their  action,  should  have  pro- 
ceeded no  further.  Any  action  obstructing  this  Constitutional 
right  was  absolutely  void." 

This  decision  supports  our  position.  The  agent,  having  re- 
ceived the  fugitive,  may  conduct  him  in  custody  from  Maine  to 
California  without  any  danger  of  lawful  interference  either 
by  private  parties  or  by  courts. 

Revoking  the  Warrant. — As  seen  in  the  case  of  Gaffigan  ■ 
and  Merrick,  the  Governor  of  a  State  may,  after  issuing  his 
warrant,  and  after  the  fugitive  has  been  arrested,  but  before  his 
delivery  to  the  agent,  grant  him  a  rehearing  of  the  case,  and 
if  he  see  fit,  upon  the  new  evidence  introduced,  revoke  his  war- 
rant and  order  the  prisoner  discharged.  In  Ohio,  Governor 
Young  revoked  a  warrant  issued  by  Governor  Hayes,  and  the 
Supreme  Court  held  as  to  this  act,  in  Work  vs.  Covington,  34 
Ohio  St.  64,  that  "if  a  warrant  for  the  surrender  of  a  fugitive 
from  justice  is  obtained  in  a  case  in  which  it  should  not  have 
been  issued,  the  Governor  may  revoke  it,  whether  issued  by 
himself  or  his  predecessor."  Judge  Okey  delivered  the  opin- 
ion of  the  court  and  added:  "It  appears  from  the  abstract  of 
the    record   in   the    Executive   Department,   that    Governors 


104  HOW   TO   PROCEED. 

Thomas  W.  Bartley,  Salmon  P.  Chase,  John  Brough,  Jacob  D. 
Cox,  Rutherford  B.  Hayes,  William  Allen  and  Thomas  L,. 
Young,  each  in  some  form  or  another,  revoked  a  warrant  of 
extradition,  and  some  of  them  exercised  that  authority  repeat- 
edly; and  it  is  well  known  that  other  Governors  of  this  and 
other  States  have  often  exercised  the  same  power." 

There  is  no  question  of  the  Governor's  authority  to  revoke 
his  warrant  before  the  fugitive  is  surrendered  to  the  agent ;  af- 
ter that  would  be  too  late. 

HABEAS  CORPUS. 

There  is  only  one  purpose  of  the  writ  of  habeas  corpus  and 
that  is  to  secure  a  judicial  inquiry  into  the  legality  of  the  arrest 
and  restraint  of  a  person  from  his  liberty. 

The  principle  underlies  our  whole  judicial  system,  resting 
for  authority  finally  upon  the  Constitution  of  the  United  States, 
that  when  a  person  is  forcibly  deprived  of  his  liberty  a  com- 
petent court  of  justice  may  inquire  into  the  cause  of  his  re- 
straint, upon  his  application  for  a  writ  of  habeas  corpus,  and 
may,  if  such  restraint  appears  to  be  unlawful,  grant  the  writ 
and  order  his  release. 

In  order  to  secure  the  issuance  of  the  writ  the  application 
for  it  must  show  a  prima  facie  case  of  illegal  detention,  for  if 
the  application  for  the  writ  admits  the  lawfulness  of  the  deten- 
tion there  would  be  no  question  to  be  determined  by  the  exam- 
ination. The  granting  of  the  writ  of  habeas  corpus  does  not  re- 
lease the  prisoner.  The  writ  is  directed  to  the  person  detain- 
ing another  and  commands  him  to  produce  the  body  of  the 
prisoner  before  the  court  for  the  purpose  of  inquiring  into  the 
legality  of  the  restraint.  The  application  for  the  writ  is  made 
by  the  prisoner,  and,  as  said  before,  in  order  to  secure  a  hear- 
ing at  all,  or  the  issuance  of  the  writ,  must  make  out  a  prima 
facie  case  of  unlawful  restraint.     The  prisoner  is  then  brought 


HABEAS   CORPUS.  105 

before  the  court  and  all  the  circumstances  of  his  arrest  and  re- 
straint are  gone  into  in  a  judicial  inquiry.  If  the  restraint  is 
found  to  be  lawful  the  prisoner  will  be  remanded  to  the  custody 
of  the  officer ;  if  unlawful  he  will  be  discharged.  There  is  only 
one  question  to  be  determined  in  this  examination  and  that  is 
the  lawfulness  of  the  custody. 

There  is  no  provision  in  the  Constitution  or  L,aw  of  Con- 
gress for  habeas  corpus  proceedings  in  extradition  cases,  yet  the 
principle  is  so  firmly  grounded  in  our  whole  judicial  system 
that  it  has  always  been  the  practice  of  courts  to  assume  that 
they  have  the  same  right  to  inquire  into  the  legality  of  a  Gov- 
ernor's warrant  as  that  issued  by  any  other  authority.  And 
this  has  been  done  from  the  earliest  history  of  the  Government, 
and  many  prisoners  have  been  discharged  from  custody  be- 
cause of  some  illegality  or  irregularity  in  the  proceedings. 
This  is  the  only  ground  upon  which  a  prisoner  is  ever  discharg- 
ed, upon  an  examination  under  a  writ  of  habeas  corpus :  If  the 
proceedings  are  regular  and  fulfill  all  the  legal  requirements 
the  prisoner  will  be  remanded  to  custody  under  the  executive 
warrant.  The  right  of  courts  "to  interfere  by  writ  of  habeas 
corpus  and  examine  the  grounds  upon  which  the  executive 
warrant  for  the  apprehension  of  an  alleged  fugitive  from  jus- 
tice from  another  State  is  issued,  and,  in  case  the  papers  are 
defective  and  insufficient,  to  discharge  the  prisoner,"  has  been 
determined  in  the  affirmative  by  the  Court  of  Appeals  of  New 
York  in  The  People  vs.  Brady,  56  N.  Y.,  182,  also  in  The  Mat- 
ter of  Manchester,  5  Cal.  237.  Judge  Ray,  of  South  Carolina, 
however,  as  early  as  18 14,  in  Ex  parte  Willard  &  Wife,  took 
the  opposite  view,  declaring  that  a  person  arrested  as  a  fugitive 
from  justice  by  the  warrant  of  a  Governor,  is  excepted  from 
the  habeas  corpus  remedy,  "by  the  operation  of  the  Constitution 
and  Laws  of  the  United  States." 

This  view  has  had  no  considerable  following,  however,  the 


I06  HOW   TO    PROCEED. 

universal  practice  being  now,  in  South  Carolina  as  well  as  all 
other  States  of  the  Union,  to  grant  the  writ  if  a  proper  case  is 
made  out  in  the  application. 

A  number  of  cases  and  decisions  might  be  cited  in  accord- 
ance with  this  view,  but  lack  of  space  compels  us  to  content 
ourselves  with  one  to  which  reference  was  previously  made, 
Ex  parte  Joseph  Smith,  reported  in  3  McL,ean,  121.  Smith  ap- 
plied to  the  Circuit  Court  of  the  United  States  for  a  writ  of 
habeas  corpus,  claiming  that  he  was  unlawfully  restrained  of 
his  liberty  by  an  arrest  under  a  warrant  of  the  Governor  of 
Illinois  upon  a  requisition  from  the  Governor  of  Missouri. 
Copies  of  all  the  papers  were  presented  to  the  court.  The  affi- 
davit charging  the  crime  was  made  by  Ljlburn  W.  Boggs,  be- 
fore a  magistrate  in  Missouri.     The  affidavit  read  as  follows: 

"This  day  personally  appeared  before  me,  Samuel  Weston,  a 
justice  of  the  peace,  within  and  for  the  county  of  Jackson,  the 
subscriber,  Lilburn  W.  Boggs,  who,  being  duly  sworn,  doth  de- 
pose and  say  that,  on  the  night  of  the  16th  day  of  May,  1842, 
while  sitting  in  his  dwelling,  in  the  town  of  Independence,  in 
the  county  of  Jackson,  he  was  shot  with  intent  to  kill,  and  that 
his  life  was  despaired  of  for  several  months,  and  that  he  be- 
lieves, and  has  good  reason  to  believe,  from  evidence  and 
information  now  in  his  possession,  that  Joseph  Smith,  com- 
monly called  the  Mormon  Prophet,  was  accessory  before  the 
fact  of  the  intended  murder,  and  that  said  Joseph  Smith  is  a 
citizen  or  resident  of  the  State  of  Illinois ;  and  that  the  said 
deponent  hereby  applies  to  the  Governor  of  the  State  of  Mis- 
souri, to  make  a  demand  on  the  Governor  of  the  State  of  Illi- 
nois to  deliver  the  said  Joseph  Smith,  commonly  called  the 
Mormon  Prophet,  to  some  person  authorized  to  receive  and 
convey  him  to  the  State  and  county  aforesaid,  there  to  be  dealt 
with  according  to  law." 
•     The  Governor  of  Missouri  issued  his  requisition  for  Smith, 


HABEAS    CORPUS.  107 

and  described  him  as  a  "  fugitive  from  justice."  The  Governor 
of  Illinois  issued  his  warrant  for  the  arrest  and  delivery  of 
Smith  to  the  agent  of  the  State  of  Missouri.  The  above  affi- 
davit was  the  basis  of  the  action  of  both  Governors.  The 
court  upon  the  hearing  on  the  return  to  the  writ  discharged 
the  prisoner  on  the  ground  that  the  affidavit  was  not  sufficient 
to  justify  the  warrant  of  arrest.  , 

It  was  not  positive,  but  merely  expressed  the  belief  of 
Boggs,  and  that  belief  related  to  a  conclusion  of  law.  It  did 
not,  in  fact,  charge  a  crime  as  having  been  committed  in  Mis- 
souri. It  did  not  show  that  Smith  was  in  Missouri  at  the  time 
of  the  alleged  offense.  It  did  not  show  or  state  that  he  had 
fled  from  the  State.  The  court  said:  "The  warrant  of  the 
Governor  of  Illinois  recites  facts  which  do  not  appear  in  the 
affidavit.  The  court  can  only  regard  the  facts  set  forth  in  the 
affidavit  of  Boggs  as  having  any  legal  existence.  The  mis- re- 
citals and  over-statements  in  the  requisition  and  the  warrant 
are  not  supported  by  oath,  and  can  not  be  received  as  evidence 
to  deprive  a  citizen  of  his  liberty,  and  transport  him  to  a 
foreign  State  for  trial.  For  these  reasons  Smith  must  be  dis- 
charged." 

The  fact  that  both  the  Governors  called  Smith  "a  fugitive 
from  justice"  was  not  regarded  by  the  court  as  legal  proof  that 
he  was  such.  The  original  affidavit  did  not  so  charge  and  it 
was  the  only  legal  proof  before  the  court. 

It  will  be  observed  that  the  court  in  this  instance  had  all 
the  papers  in  the  case  before  it.  If,  as  is  frequently  the  case, 
only  the  Governor's  warrant  had  been  presented  to  the  court, 
it  can  not  be  determined  how  the  decision  would  have  been, 
but  it  is  quite  probable  that  if  it  had  shown  upon  its  face  that 
Smith  was  charged  with  a  crime  in  Missouri,  and  that  he  was 
a  fugitive  from  justice  in  Illinois,  the  court  would  have  declined 
to  go  behind  that  prima  facie  evidence.     But  when  all  the  pa- 


108  HOW   TO   PROCEED. 

pers  are  before  the  court  they  will  examine  all  the  evidence  to 
ascertain  if  proceedings  have  been  in  accordance' with  the  Con- 
stitution and  L,aws  of  the  United  States,  and  the  affidavit  is  the 
best  evidence.  This  shows  the  importance  to  a  person  unlaw- 
fully restrained  of  his  liberty,  in  an  extradition  proceeding,  of 
having  all  the  papers  in  the  case  before  the  court  upon  the 
hearing  under  the  writ  of  habeas  corpus. 

JURISDICTION. 

The  State  and  Federal  courts  have  concurrent  jurisdiction 
in  habeas  corpus  cases  arising  under  extradition  proceedings. 
All  the  laws,  rules  and  decisions  are  based  upon  the  Constitu- 
tion of  the  United  States  and  the  act  of  Congress  relating  to 
extradition.  The  law  of  the  Nation  is  the  law  of  the  State. 
When  the  State  court  of  Wisconsin  illegally  released  the  pris- 
oner Frank,  whom  the  agent  Burke  was  bringing  from  Minne- 
sota to  Illinois,  the  District  Court  of  the  United  States,  Judge 
Nelson  presiding,  declared  that  if  the  prerequisites  of  the  law 
of  1793  are  complied  with  and  the  fugitive  has  been  delivered 
to  the  agent  of  the  demanding  State,  then  a  "discharge  of  the 
person  under  a  writ  of  habeas  corpus,  by  the  judge  of  any  court, 
whether  State  or  Federal,  would  be  coram  ?ion  judice  and 
void." 

A  person  believing  himself  to  be  unlawfully  detained  may 
apply  for  a  writ  of  habeas  corpus  to  either  a  State  or  Federal 
court. 

Limitation  of  Jurisdiction. — A  question  that  has  puzzled 
jurists  not  a  little,  is  whether  a  person  may  be  brought  into  a 
jurisdiction  ostensibly  for  the  purpose  of  punishing  him  for  a 
crime  and  then  be  compelled  to  answer  a  civil  process,  or  to  be 
tried  for  an  entirely  different  offense  than  the  one  charged. 

The  principle  of  law  is  well  settled  that  a  person  who  has 
been  brought  into  the  jurisdiction  of  a  court  on  a  criminal 


JURISDICTION.  IO9 

charge,  which  is  a  mere  pretext  for  the  purpose  of  proceeding 
against  him  in  a  civil  action,  can  not  be  arrested  and  held  in 
such  action  at  the  suit  of  any  one  who  was  in  any  way  inter- 
ested in  such  abuse  of  a  legal  process. 

It  is  not  well  settled,  however,  whether  a  person  can  be  ex- 
tradited for  one  offense  and  then  punished  for  another  com- 
mitted prior  to  his  extradition.  And  as  to  subjection  to  civil 
processes  there  seems  to  be  still  more  doubt.  The  Supreme 
Court  of  Illinois,  in  Wanzer  vs.  Bright,  52  111.,  35  held:  "1. 
That  no  court  will  take  jurisdiction  of  a  party  when  it  is  ob- 
tained by  fraud;  that  a  defendant  is  not  amenable  to  process  un- 
less he  is  in,  or  voluntarily  comes  within,  the  territorial  jurisdic- 
tion of  the  court;  and  that  even  a  valid  and  lawful  act  can  not 
be  accomplished  by  such  unlawful  means  as  enticing  a  party  by 
fraud  to  come  within  the  jurisdiction  of  the  court,  so  as  to  sub- 
ject him  to  process.  2.  That  when  a  party  has  been  fraud- 
ulently induced  to  come  within  the  jurisdiction  of  a  court,  so 
as  to  render  him  or  his  property  amenable  to  its  process,  he 
may  have  his  action  therefor.  3.  That  when  a  party  was  de- 
coyed from  one  State  into  another,  for  the  purpose  of  his  arrest 
in  the  latter  State,  in  a  civil  action,  the  creditors  guilty  of  such 
fraudulent  conduct  and  abuse  of  process,  not  only  could  not 
make  them  availing  for  the  purpose  intended,  but  were  liable 
to  an  action  at  the  suit  of  the  party  for  the  illegal  arrest  and 
imprisonment." 

There  is  no  reason  why  these  principles  should  not  apply 
in  cases  of  extradition.  Judge  Cooley  says:  "To  obtain  the 
surrender  of  a  man  on  one  charge,  and  then  put  him  upon 
trial  on  another,  is  a  gross  abuse  of  the  constitutional  compact. 
We  believe  it  to  be  a  violation  also  of  legal  principles." 

It  has  been  held  in  Kentucky  that  a  fugitive  surrendered 
on  one  charge  is*  exempt  from  prosecution  on  any  other. 

It  is  also  a  general  rule  of  law  that  where  a  man  is  in  the 


IIO  HOW    TO    PROCEED. 

jurisdiction  of  a  court  by  compulsion  for  a  special  purpose,  that 
his  presence  there  shall  not  be  taken  advantage  of  to  subject 
him  to  legal  demands  or  restraints  for  any  other  purpose. 

The  decisions  on  these  questions  have  not  been  uniform  and 
still  this  is  the  only  proper  view  to  take  of  the  matter  and  the 
only  view  that  is  consistent  with  the  spirit  and  letter  of  the 
Constitution  and  Laws  of  the  United  States  providing  for  the 
extradition  of  criminals. 

The  strongest  opposing  opinion  we  have  seen  comes  from 
the  Supreme  Court  of  Wisconsin  in  the  case  of  The  State  vs. 
Stewart,  19  N.  W.  Rep.  429.  The  case  came  up  from  the 
Circuit  Court  of  Columbia  County,  on  a  writ  of  certiorari. 
The  relator  was  extradited  from  Indiana  to  Wisconsin  on 
a  charge  of  embezzlement,  tried  and  acquitted.  He  was 
immediately  arrested  on  another  charge,  that  of  obtaining 
property  under  false  pretense  and  committed  to  prison. 
He  applied  to  Judge  Alva 'Stewart,  of  the  Circuit  Court,  on 
a  writ  of  habeas  corpus,  claiming  that  he  was  unlawfully  re- 
strained of  his  liberty;  that  after  his  acquittal  on  the  other 
charge  he  should  have  been  given  proper  time  to  return  to 
Indiana,  from  which  State  he  was  extradited.  Judge  Stewart 
decided  that  he  was  properly  held  and  ordered  him  into  the 
custody  of  the  sheriff.  The  case  went  to  the  Supreme  Court 
on  certiorari.  The  court  affirmed  the  opinion  of  the  lower 
court.  Judge  Cassoday  delivered  the  opinion  of  the  court  and 
in  his  conclusion  used  the  following  language: 

"It  follows  that  the  relator  might  have  been  again  ex- 
tradited had  he  been  allowed  to  go  to  Indiana  after  being  dis- 
charged on  the  first  offense.  This  being  so,  there  seems  to  be 
no  practical  reason  for  holding  that  the  relator  could  not  be 
legally  arrested  immediately  upon  the  discharge  from  the  first 
offense,  instead  of  being  allowed  to  escape  the  State  and  then 
brought  back  on  requisition.     Such  an  arrest  in  such  a  case 


GENERAL   REMARKS.  1 1 1 

was  certainly  not  in  violation  of  any  law  of  the  United  States. 
It  was  not  in  conflict  with  any  agreement  between  the  States. 
It  was  no  breach  of  any  executive  pledge.  It  was  no  interrup- 
tion of  any  comity  between  the  States.  We  must,  therefore, 
hold  that  the  arrest  was  not  illegal  by  reason  of  any  of  the  ob- 
jections mentioned." 

We  incline  to  the  view  of  Judge  Cooley  that  extraditing  a 
man  on  one  charge  and  trying  him  on  another  "is  a  gross 
abuse  of  the  constitutional  compact."  True,  the  constitution 
does  not  establish  the  doctrine  in  express  words,  yet  the  impli- 
cation is  so  strong  as  to  have  the  force  of  express  language. 

The  Supreme  Court  of  the  United  States  has  never  passed 
upon  the  question,  and  until  it  does  the  decisions  of  State 
courts  will  probably  be  as  inconsistent  in  the  future  as  they 
have  been  in  the  past. 

GENERAL  REMARKS. 

We  have  given  the  law  as  far  as  it  has  been  settled  by  leg- 
islation or  judicial  decision  on  the  subject  of  inter-State  extra- 
dition. We  desire  to  warn  detectives,  officers  and  agents,  how- 
ever, that  the  law  is  not  always  strictly  followed,  either  by  the 
courts  or  the  officers.  Many  tricks  are  resorted  to  in  order  to 
secure  the  release  of  a  prisoner  from  an  agent,  or  by  the  agent 
to  get  possession  of  his  man,  that  are  not  only  unlawful  but 
positively  disgraceful.  If  the  fugitive  is  rich  and  influential 
his  money  will  secure  the  best  legal  talent,  obtain  favors  from* 
officers  and  courts,  prolong  contests  that  to  a  poor  man  wiuld 
seem  hopeless  and  frequently  bring  about  results  that,  thrown 
in  the  scales  of  justice  against  the  proved  facts,  would  fly  sky- 
ward like  a  rocket.  On  the  other  hand,  promise  of  a  handsome 
reward  frequently  induces  officers  and  agents  to  over  step  the 
strict  boundaries  of  the  law  and  resort  to  tricks  and  disreputable 
means  not  sanctioned  by  either  law  or  equity  to  secure  the  re- 
turn of  a  prisoner. 


112  HOW   TO   PROCEED. 

Our  counsel  is  against  all  unlawful  methods.  Do  not  re- 
sort to  tricks  and  do  not  countenance  them  in  others.  The 
basis  of  this  government  is  obedience  to  law.  Any  general 
departure  from  this  fundamental  principle  would  result  in 
anarchy. 

Still,  every  officer  must  be  on  the  alert  for  sharp  practice 
and  not  get  caught  napping.  Watch  every  movement  of  the 
opposing  party  and  be  ready  to  meet  it.  A  careful  study  of 
the  foregoing  pages  will  disclose  to  every  intelligent  officer  the 
necessary  elements  to  make  out  an  extraditable  case.  See  that 
your  papers  are  all  right,  that  they  allege  all  the  necessary  con- 
stitutional conditions  of  extradition,  and  if  they  do  not,  have 
them  right  before  proceeding.  It  is  not  necessary  that  they 
be  in  the  exact  words  of  the  forms  "given  on  the  preceding 
pages  but  the  substance  should  be  the  same.  In  fact  the  forms 
gotten  up  by  the  different  States  all  vary  in  language,  yet  all 
must  show:  i.  That  a  crime  is  charged  by  affidavit  or  com- 
plaint. 2.  That  the  charge  is  properly  authenticated.  3.  That 
the  person  charged  is  a  fugitive  from  justice. 

We  advise  against  attempting  to  extradite  a  fugitive  on 
complaint  if  it  can  possibly  be  avoided.  Executives  look  with 
much  disfavor  on  papers  based  on  complaint  and  frequently 
refuse  to  issue  the  warrant.  And  if  the  Governor  refuses  to 
issue  the  warrant  there  is  no  power  on  earth  can  compel  him 
to  do  it.  And  if  the  Governor  issues  his  warrant,  based  upon 
complaint,  the  prisoner  is  likely  to  get  off  on  a  writ  of  habeas 
corpus.  Always  have  an  indictment  returned  against  the  fugi- 
itive  if  possible.  This  is  much  more  satisfactory,  because  it 
shows  that  a  jury  of  fifteen  men  have  examined  the  evidence 
against  the  party  and  that  at  least  twelve  of  them  think  it  suf- 
ficiently strong  to  justify  them  in  bringing  him  to  trial,  where 
all  the  facts  on  both  sides  can  be  heard. 


CHAPTER  IV. 

EXTRADITION. — INTERNATIONAL. 

OUR  discussion  of  the  subject  of .  Extradition  has  been 
confined  to  the  surrender  of  fugitives  from  one  State 
of  the  Union  to  another,  or  inter-State  extradition. 
This,  while  the  narrower  field,  is  the  one  in  which  the 
large  majority  of  extradition  cases  arise.  It  is  important,  how- 
ever, for  officers  to  be  posted  on  the  principles  and  rules  gov- 
erning International  Extradition,  or  the  surrender  of  fugitives 
from  one  sovereign  and  independent  nation  to  another  upon 
demand. 

As  the  basis  of  inter-State  extradition  is  the  constitution  of 
the  United  States,  so  the  basis  of  international  extradition  is 
in  the  treaties  or  compacts  existing  between  nations. 

Some  writers  upon  the  Law  of  Nations,  as  Grotius,  Vattel, 
Rutherford,  Kent,  Burlamaqui  and  others,  have  held,  in  the 
language  of  Mr.  Wheaton,  "that  according  to  the  law  and  usage 
of  nations,  every  sovereign  State  is  obliged  to  refuse  an  asylum 
to  individuals  accused  of  crimes  affecting  the  general  peace  and 
security  of  society,  and  whose  extradition  is  demanded  by  the 
government  of  that  country  within  whose  jurisdiction  the  crime 
has  been  committed."  A  number  of  other  writers,  as  Puffen- 
dorf,  Kluber,  Schmaltz,  Veot,  Saalfield,  Heffter  and  others,  in 
the  language  of  the  same  distinguished  author,  have  maintained 
that  "the  extradition  of  fugitives  from  justice  is  a  matter  of 
imperfect  obligation  only,  and  though  it  may  be  habitually 
practiced  by  certain  States  as  the  result  of  mutual  comity  and 
convenience,  requires  to  be  confirmed  and  regulated  by  special 
compact,  in  order  to  give  it  the  force  of  an  international  law." 
8  113 


114  HOW   TO   PROCEED. 

The  conflict  of  opinion  among  these  eminent  writers,  all  of 
whom  are  foreigners  except  Kent,  shows  the  unsettled  condi- 
tion of  the  principle  of  international  extraditions  in  European 
countries  as  recently  as  a  quarter  of  a  century  ago.  In  nearly 
all  European  countries  the  subject  is  now  regulated  by  treaties, 
and  where  no  treaty  exists  the  same  uncertainty  prevails,  only 
the  practice  is  more  settled  now  to  refuse  to  extradite  a  fugi- 
tive unless  there  is  a  positive  contract  between  the  nations 
covering  that  particular  crime. 

It  has  never  been  the  practice  of  the  United  States  Govern- 
ment either  to  demand  or  surrender  a  fugitive  in  the  absence 
of  special  treaty  stipulations  providing  for  it. 

The  only  notable  exception  was  in  the  case  of  Arguelles, 
an  officer  of  the  Spanish  army  in  Cuba.  In  1864  the  Captain- 
General  of  Cuba  requested  Secretary  of  State  Seward  to  order 
the  arrest  and  delivery  of  Don  Jose  Augustin  Arguelles, 
charging  him  with  a  gross  offense  against  the  laws  of  Spain  re- 
lating to  the  slave  trade,  and  alleging  that  Arguelles  was  a 
fugitive,  having  fled  to  New  York  with  a  large  sum  of  money, 
the  fruit  of  his  crime.  Secretary  Seward,  with  the  approval  of 
President  Lincoln,  ordered  thearrest  and  delivery  of  Arguelles 
to  the  Spanish  authorities,  although  there  was  no  treaty  with 
Spain  providing  for  such  action.  Arguelles  was  so  speedily 
and  summarily  taken  out  of  the  country  that  he  had  no  oppor- 
tunity to  apply  to  a  court  of  justice  to  test  the  lawfulness  of 
the  proceeding. 

The  Senate  of  the  United  States  afterward  made  inquiry 
about  the  case  and  the  President  and  Secretary  defended  their 
action  upon  the  ground  that  it  was  done  in  "virtue  of  the  law 
of  nations  and  the  Constitution  of  the  United  States." 

As  to  the  law  of  nations,  as  seen  above,  it  is  in  a  state,  of 
confusion  in  the  absence  of  treaty;  and  as  to  the  Constitution 
of  the  United  States  it  does  not  contain  a  clause  or  a  word  in 


EXTRADITION. — INTERNATIONAL.  1 15 

reference  to  the  extradition  of  fugitives  charged  with  the 
commission  of  crime  in  foreign  countries,  independent  of  treaty 
stipulations. 

Without  going  into  the  discussion  of  the  subject  we  will 
say  that  it  is  now  pretty  definitely  settled  in  this  country  that 
no  department  of  the  general  government  is  either  bound  or 
authorized  to  deliver  up  criminals  from  other  countries  unless 
special  provision  is  made  for  it  by  treaty.  See  The  Common- 
wealth vs.  Deacon,  10  Serg.  &  Rawle,  125;  The  U?iited  States 
vs.  Davis,  2  Sumn.,  482;  The  Case  of  Jose  Ferreira  Dos  Santos. 
2  Brock.,  493:  Adriance  vs.  Lagrave,  59  N.  Y.,  no. 

It  being  settled  that  the  United  States  Government  is 
neither  bound  nor  authorized  to  surrender  a  fugitive  from  an- 
other country  in  the  absence  of  treaty  stipulations,  and  can  not 
demand  the  same  by  right  or  authority  of  other  nations,  the 
question  arises,  have  the  States  of  the  Union  the  power  to  de- 
liver up  fugitives  from  other  foreign  countries  upon  de- 
mand from  those  countries? 

Neither  will  we  go  into  an  elaborate  discussion  of  this  sub- 
ject. Two  considerations,  we  think,  settle  it,  although  other 
arguments  could  be  adduced  :  1 .  If  the  United  States  govern- 
ment is  not  authorized  to  deliver  fugitives  without  treaty  cer- 
tainly the  States  could  not,  for  this  is  a  principle  that  ^applies 
to  all  nations.  2.  If  the  States  can  not  deliver  fugitives  in  the 
absense  of  treaty,  they  can  not  do  so  at  all,  for  the  Constitu- 
tion of  the  United  States,  in  the  first  clause  of  Sec."  10,  Article 
I,  says :  "  No  State  shall  enter  into  any  treaty,  alliance  or  con- 
federation with  any  foreign  power."  And  further  along,  in 
the  same  section,  it  says  that  "  no  State  shall  enter  into  any 
agreement  or  compact  with  another  State,  or  with  a  foreign 
power,"  without  the  consent  of  Congress.  • 

This  settles  the  question.  The  States  are  excluded  by  the 
Constitution  from  all  official  intercourse  with  foreign  nations. 


Il6  HOW   TO    PROCEED. 

They  can  not  make  a  treaty.  They  can  not  contract  to  de- 
liver up  a  fugitive,  and  they  can  not  do  the  thing  itself,  for  no 
State  can  do  a  thing  which  it  has  not  the  power  to  agree  to  do. 
See  The  People,  ex  rel.  Francis  C.  Barlow  vs.  Curtis,  50  N.  Y. 
321. 

The  Treaty  Power. — The  Constitution  of  the  United  States 
reposes  the  power  of  making  treaties  in  the  President  and 
Senate.  Article  II,  Sec.  2,  reads :  "He  (the  President)  shall 
have  power,  by  and  with  the  advice  and  consent  of  the  Senate, 
to  make  treaties,  provided  two-thirds  of  the  Senators  concur." 
This  language,  being  general,  covers  all  sorts  of  treaties,  as 
Justice  Story  remarks,  "for  peace  or  war,  for  commerce  or 
territory,  for  alliance  or  succors,  for  indemnity,  for  injuries  or 
payment  of  debts,  for  the  recognition  and  enforcement  of  prin- 
ciples of  public  law,  and  for  any  other  purposes  which  the  pol- 
icy or  interests  of  independent  sovereigns  may  dictate  in  their 
intercourse  with  each  other." 

Still  the  treaty  power  is  limited  by  the  Constitution  itself, 
not  in  words  but  by  construction,  for  it  can  not  be  supposed 
that  the  President  and  Congress  are  authorized  to  make  a 
treaty  that  would  supersede  or  interfere,  in  any  way,  with  the 
other  fundamental  provisions  of  the  Constitution. 

There  is  no  question,  then,  that  the  subject  of  extradition 
comes  within  the  treaty  power,  especially  as  it  has  been  made 
the  subject  of  treaties  between  different  countries  from  very 
early  times. " 

Citizens  and  Foreigners. — It  has  been  claimed  by  some  that 
a  difference  ought  to  be  made  between  citizens  and  foreigners; 
that  if  a  citizen  of  the  United  States  should  commit  a  crime 
in  England  and  flee  to  this  country,  his  home,  the  Government 
ought  to  be  under  less  obligation  to  deliver  him  up  than  a  cit- 
izen of  England  who  should  flee  here  for  refuge.  But  there  is 
no  distinction  made  whatever.     Some  treaties  distinctly  pro- 


EXTRADITION    TREATIES.  1 17 

vide  that  neither  nation  shall  be  obliged  to  deliver  up  its  own 
citizens,  and,  of  course,  in  this  case  there  is  no  obligation  to 
deliver  them  up — the  contract  must  be  carried  out.  But  many 
treaties  make  no  such  provision,  and  in  this  case  no  difference 
is  made. 

EXTRADITION    TREATIES. 

The  object  of  a  treaty  between  two  sovereign  powers  is  to 
establish  reciprocal  rights  and  impose  reciprocal  obligations. 
The  contract  gives  each  the  right  to  demand  of  the  other  a 
fugitive,  a*nd  imposes  on  each  the  duty  to  deliver  up  such  fugi- 
tive when  the  conditions  are  in  accordance  with  the  treaty 
stipulations.  It  is  for  each  political  sovereignty  to  determine 
how  far  it  will  concede  to  another  the  right  to  demand,  and 
how  far  it  will  assume  the  obligation  to  surrender  fugitives. 
When  this  is  once  determined  by  treaty  the  rights  and  obliga- 
tions become  reciprocal.  Still  the  faithfulness  with  which  the 
provisions  of  the  treaty  are  carried  out  depends  entirely  upon 
national  honor,  for  there  is  no  way  of  enforcing  the  provisions 
of  a  treaty  except  by  war. 

Crimes. — In  the  treaties  now  existing  between  the  United 
States  and  foreign  nations  there  are  altogether  about  thirty 
crimes  for  which  extradition  is  provided.  The  principal  ones 
are:  i.  Arson.  2.  Assassination.  3.  Assault  with  intent  to 
commit  murder.  4.  Bigamy.  5.  Burglary.  6.  Circulation  or 
fabrication  of  counterfeit  money.  7.  Counterfeiting  public 
bonds,  bank  bills,  securities,  stamps,  dies,  seals,  etc.  8.  Em- 
bezzlement of  public  money.  9.  Embezzlement  by  public  offi- 
cers. 10.  Embezzlement  by  persons  hired  or  salaried.  11. 
Forgery.  12.  Utterance  of  forged  paper.  13.  Infanticide.  14. 
Kidnaping.  15.  Murder.  16.  Mutiny.  17.  Mutilation.  18. 
Parricide.  19.  Piracy.  20.  Poisoning.  21.  Rape.  22.  Rob- 
bery. 

There  are  several  other  crimes  of  a  special  nature  provided 


Il8  HOW    TO    PROCKKI). 

for  in  a  few  treaties,  as  fraudulent  bankruptcy  and  fraudulent 
barratry  in  the  treaty  with  Peru,  abortion  and  the  willful  de- 
struction or  obstruction  of  railroads,  endangering  human  life, 
in  the  treaty  with  Belgium.  The  nations  to  a  treaty  frequently 
speak  different  languages,  in  which  case  the  treaty  is  written  in 
both  languages.  The  terms  or  names  used  to  designate  crimes 
are  the  titles  known  and  acknowledged  between  the  parties  to 
mean  the  same  thing.  If  there  is  a  different  shade  of  meaning 
or  doubt  as  to  the  meaning  the  definition  is  given,  as  in  the 
supplemental  article  of  Feb.  24,  1845,  to  the  treaty  of  1843 
with  France,  burglary  is  placed  in  the  extradition  list  and  de- 
fined to  be  "breaking  and  entering  by  night  into  the  mansion- 
house  of  another  with  intent  to  commit  felony."  If  we  have  a 
statutory  definition  of  burglary  different  from  this,  and  the  stat- 
utory crime  were  committed,  we  could  not  extradite  the  fugi- 
tive from  France  under  this  treaty.  In  order  to  extradite  un- 
der a  treaty  the  crime  must  be  exactly  the  same  as  the  one  pro- 
vided for  by  the  treaty.  The  definition  can  not  be  enlarged  or 
changed  to  a  slightly  different  shade  of  offense,  but  must  be 
interpreted  strictly. 

Evidence. — In  the  United  States  treaties  the  rule  of  evi- 
dence is  that  of  the  country  on  which  the  demand  is  made.  As 
much  evidence  should  be  adduced  to  sustain  the  charge  of  crim- 
inality on  which  the  demand  is  based  as  would  justify  the  arrest 
and  committment  for  trial  in  the  country  on  which  the  demand 
is  made.  The  laws  of  the  country  making  the  demand  have 
nothing  to  do  with  this  rule  of  evidence.  The  same  is  true  in 
regard  to  determining  whether  the  crime  falls  within  the  pro- 
visions of  the  treaty.  The  nation  upon  which  the  demand  is 
made  always  decides  this  question. 

The  demand  must  be  made  by  the  highest  political  author- 
ity of  the  nation,  or  by  ministers  or  officers,  duly  authorized  to 
make  such  demand.     The  demand,  must  recite  the  crime  with 


EXTRADITION   TREATIES.  I  19 

which  the  fugitive  is  charged ;  it  must  be  accompanied  by 
properly  authenticated  evidence  of  the  guilt  of  the  accused,  and 
the  crime  charged  must  be  one  for  which  extradition  is  pro- 
vided in  the  treaty. ,  The  demanding  nation  must  make  out  its 
case  and  the  nation  on  whom  the  demand  is  made  is  the  sole 
judge  of  whether  the  case  is  made  out,  and  from  its  decision 
there  is  no  appeal.  If  the  treaty  specifically  provides  what 
evidence  or  proof  shall  be  submitted,  as  is  sometimes  the  case, 
then  this  must  be  followed. 

The  first  treaty  ever  negotiated  by  the  United  States  Gov- 
ernment, which  contained  extradition  provisions,  was  with 
Great  Britain  in  1794,  and  the  27th  article  of  that  treaty  pro- 
vided for  the  extradition  of  fugitives  charged  with  murder  and 
forgery.  This  provision  of  the  treaty  expired  by  limitation  in 
1806  and  from  that  time  to  1842  there  was  no  extradition  treaty 
existing  between  Great  Britain  and  the  United  States.  The 
treaty  of  1842  added  five  crimes  to  the  two  of  the  old  treaty, 
making  seven  in  all.  The  treaty  with  Italy  ratified  March  3, 
1868,  recites  eight  extradition  crimes.  Each  treaty  stands 
alone  and  contains  such  list  of  crimes  as  the  high  contracting 
parties  deem  conducive  to  the  ends  of  justice.  As  a  rule,  mis- 
demeanors and  all  minor  offenses  are  omitted,  only  the  graver 
and  more  heinous  crimes  being  made  extraditable.  Political 
offenses  are  expressly  excluded  from  twenty  of  the  treaties  now 
existing  between  this  and  foreign  countries.  Treason  and 
sedition  are  political  offenses ;  so  would  be  crimes  against  the 
right  of  suffrage.  Sometimes  crimes  that  would  ordinarily  be 
considered  political  are  declared  not  to  be,  and  made  extradit- 
able, as  in  the  treaty  with  Belgium,  of  June  13,  1882,  which 
provides  that  "  an  attempt  against  the  life  of  the  head  of  a 
foreign  Government,  or  against  that  of  any  member  of  his 
family,  when  such  attempt  comprises  the  act  either  of  murder 
or  assassination,  or  of  poisoning,  shall  not  be  considered  a  polit- 
ical offense,  or  an  act  connected  with  such  an  offense." 


120  HOW   TO   PROCEED. 

Crimes  committed  before  the  treaty  is  made  are  expressly 
excluded  in  eight  existing  treaties,  and  three  others  exclude 
crimes  committed  before  the  date  of  ratification  of  the  treaty. 
If  crimes  committed  before  the  treaty  is  made  are  not  ex- 
pressly excluded  from  its  operation  they  become  extraditable 
under  the  treaty.  Judge  Blatchford  decided  this  point  in  the 
case  of  Angelo  De  Giacomo,  12  Blatch.  391,  who  was  extradited 
under  the  treaty  between  the  United  States  and  the  King  of 
Italy.  Judge  Blatchford  said  that  inasmuch  as  there  was  "  no 
stipulation  precluding  its  application  to  crimes  committed  be- 
fore the  date  of  the  treaty,  that  it  was  applicable  to  such  of- 
fenses, if  within  the  enumeration,  as  well  as  to  those  com- 
mitted subsequently  to  its  date." 

Two  of  these  treaties  declare  that  no  surrendered  person 
shall  be  tried  for  a  crime  committed  before  the  one  for  which 
he  was  extradited. 

If  the  person  demanded  has  committed  a  crime  in  the 
country  in  which  he  has  taken  refuge,  and  has  there  been  ar- 
rested for  it,  or  is  undergoing  prosecution  or  punishment  for 
it,  extradition  is  ordinarily  deferred  until  his  acquittal,  or  the 
expiration  of  his  punishment.  This  is  expressly  provided  for 
in  twenty-two  of  these  treaties. 

If  two  countries  demand  a  fugitive  at  the  same  time  from 
a  third,  the  custom  is  to  surrender  to  the  demand  which  is  the 
earliest  in  date,  and  this  is  expressly  provided  for  in  the  pres- 
ent treaty  with  Spain. 

A  fugitive  extradited  to  one  country  should  not  by  that 
country  be  surrendered  to  a  third  without  the  consent  of  the 
first  country  unless  the  accused  consent  to  go  or  unless  he  re- 
main in  the  country  receiving  him  first  a  sufficient  length  of 
time  to  have  gone  back  to  the  country  from  which  he  was  first 
brought.  The  present  treaty  with  Belgium  provides  for  this 
and  fixes  the  time  at  one  month  after  his  discharge. 


EXTRADITION   TREATIES.  121 

Convicts. — Unless  the  treaty  expressly  stipulate  convicts 
they  will  not  be  extradited.  In  eleven  existing  treaties  con- 
victs are  included.  In  other  cases  the  fugitive  is  charged  with 
crime  and  demanded  for  trial  and  punishment.  Convicts  are 
presumed  to  have  been  tried  and  are  simply  demanded  for 
punishment. 

It  is  now  well  settled  in  International  Extradition  that  a 
person  can  not  be  put  upon  trial  for  a  different  crime  from  that 
for  which  he  was  extradited.  If  the  fugitive,  after  his  extradi- 
tion, however,  should  commit  a  crime  in  the  country  that  de- 
manded and  received  him,  the  fact  of  his  extradition  would 
give  him  no  immunity  from  the  consequences  of  this  crime. 
The  fugitive  has  a  right  of  asylum  in  the  country  to  which  he 
has  fled  as  to  all  crimes  committed  in  the  demanding  country 
prior  to  his  extradition.  When  the  country  withdraws  this 
right  of  asylum  and  delivers  him  up,  it  does  so  only  as  to  those 
crimes,  and  offers  no  protection  against  any  crime  that  he  may 
commit  in  the  future. 

The  decisions  on  this  question  are  numerous  and  elaborate 
and  the  customs  of  courts  in  all  countries  are  almost  uni- 
form in  the  position  that  a  fugitive  can  not  be  tried  for  any 
crime  other  than  the  one  for  which  he  was  extradited,  unless 
it  be  committed  subsequent  to  his  extradition. 

We  have  not  space  to  give  the  entire  text  of  all  the  existing 
extradition  treaties  between  the  United  States  and  foreign 
countries,  but  the  following  synopses  will  be  found  to  contain 
all  the  essential  features  of  each.  We  present  them  in  chrono- 
logical order,  giving  dates,  countries,  extraditable  crimes  in 
each,  and  special  provisions.  The  expense  is  always  borne  by 
the  party  who  makes  the  requisition. 

I.      GREAT   BRITAIN,   AUGUST  9,    1 842. 

Crimes. — 1.  Murder.  2.  Assault  with  intent  to  commit 
murder.  3.  Piracy.  4.  Arson.  5.  Robbery.  6.  Forgery. 
7.  Utterance  of  forged  paper. 


122  HOW  TO   PROCEED. 

Evidence. — Such  as  according  to  the  laws  of  the  place  where 
the  fugitive  or  person  so  charged  shall  be  found,  would  justify 
his  apprehension  and  commitment  for  trial  if  the  crime  or  of- 
fense had  there  been  committed. 

II.       FRANCE,    NOVEMBER   9,    1 843. 

Crimes. — 1.  Murder  (comprehending  the  crimes  designated 
in  the  French  Penal  Code  by  the.terms  assassination,  parricide, 
infanticide,  and  poisoning).  2.  Attempt  to  commit  murder.  3. 
Rape.  4.  Forgery.  5.  Arson.  6.  Embezzlement  by  public 
officers  when  the  same  is  punishable  with  infamous  punish- 
ment. 

Surrender  is  made  on  the  part  of  France  by  the  Keeper  of 
the  Seals,  Minister  of  Justice,  and  of  the  United  States  by 
authority  of  the  "Executive. 

Provisions  do  not  apply  to  said  crimes  committed  anterior 
to  date  of  treaty,  nor  to  political  offenses. 

Treaty  continues  in  force  until  abrogated  by  the  consent  of 
the  parties. 

Additional  Article,  Feb.  24,  1845. — This  article  added  two 
crimes,  robbery  and  burglary,  and  was  made  a  part  of  the  orig- 
inal treaty.  It  defines  both  crimes:  Robbery,  the  felonious  and 
forcible  taking  from  the  person  of  another,  of  goods  or  money 
to  any  value,  by  violence,  or  putting  him  in  fear.  Burglary, 
breaking  and  entering  by  night  into  a  mansion-house  of  an- 
other, with  intent  to  commit  felony,  and  the  corresponding 
crimes  included  under  the  French  law  in  the  words  vol  qual- 
ifie  crime. 

Additional  Article,  Feb.  10,  1858. — This  article  added  the 
following  crimes  to  the  others :  Forging  or  knowingly  passing 
or  putting  in  circulation  counterfeit  coin,  or  bank  notes,  or 
other  paper  current  as  money,  with  intent  to  defraud  any  per- 
son or  persons ;  embezzlement  by  any  person  or  persons  hired 
or  salaried,  to  the  detriment  of  their  employers,  when  these 
crimes  are  subject  to  infamous  punishment. 


EXTRADITION  TREATIES.  1 23 

III.       HAWAIIAN    ISLANDS,    DECEMBER    20,    1 849. 

Crimes. — 1.  Murder.     2.  Piracy.     3.  Arson.     4.  Robbery. 

5.  Forgery  or  the  utterance  of  forged  paper. 

Evidence. — Same  as  Great  Britain. 

IV.      SWISS   CONFEDERATION,    NOVEMBER    25,    1850. 

Crimes. —  1.  Murder  (including  assassination,  parricide,  in- 
fanticide and  poisoning).  2.  Attempt  to  commit  murder.  3. 
Rape.     4.  Forgery  or  the  emission  of  forged  papers.     5.  Arson. 

6.  Robbery  with  violence,  intimidation  or  forcible  entry  of  an 
inhabited  house.  7.  Piracy.  8.  Embezzlement  by  public  offi- 
cers, or  by  persons  hired  or  salaried  to  the  detriment  of  their 
employers,  when  these  crimes  are  subject  to  infamous  punish- 
ment. 

Surrender  is  made  on  the  part  of  the  Swiss  Confederation 
by  the  Federal  Council. 

Offenses  committed  before  date  of  treaty  excluded. 

This  treaty  was  made  for  ten  years  and  renewable  from 
year  to  year,  without  official  notice  by  either  party  that  they 
desired  to  withdraw.  It  can  be  terminated  at  any  time  by 
either  party,  giving  twelve  months'  notice. 

V.      PRUSSIA  AND  OTHER  STATES,  JUNE  l6,   1852. 

This  treaty  expressly  includes  the  following  States  of  the 
German  Empire:  Prussia,  Saxony,  Hesse,  Hesse  and  on  Rhine, 
Saxe-Weimar-Eisenach,  Saxe-Meiningen,  Saxe-Altenburg,  Saxe- 
Coburg-Gotha,  Brunswick,  Anhalt-Dessau,  Anhalt-Bernburg, 
Nassau,  Schwarzburg-Rudolstadt,  Schwarzburg-Sondershaus- 
en,  Waldeck,  Reuss  (elder  branch),  and  Ruess  (junior  branch), 
Lippe,  Hess-Homburg,  and  the  free  city  of  Frankfort. 

Crimes. —  1.  Murder.  2.  Assault  with  intent  to  commit 
murder.  3.  Piracy.  4.  Arson.  5.  Robbery.  6.  Forgery.  7. 
Utterance   of  forged  papers.     8.  Fabrication  or  circulation  of 


124  HOW  TO   PROCEED. 

counterfeit  money,  whether  coin  or  paper  money.  9.  Embez- 
zlement of  public  moneys. 

Evidence. — Same  as  Great  Britain. 

Citizens. — No  one  of  the  contracting  parties  obliged  to  de- 
liver up  its  own  citizens. 

New  Crime. — If  the  fugitive  commits  another  crime  in  the 
country  in  which  he  has  taken  refuge  he  shall  not  be  delivered 
up  until  he  has  stood  trial  for  said  crime  and  been  acquitted  or 
served  out  his  punishment. 

Termination. — This  treaty  was  made  to  continue  in  force 
until  Jan.  ist,  1858,  and  then  indefinitely  until  either  party 
gives  twelve  months'  notice  of  a  desire  to  withdraw. 

VI.  BREMEN,  SEPTEMBER  6,  1 853. 
The  preceding  treaty  with  Prussia  and  other  German 
States  contained  a  clause  to  the  effect  that  its  provisions  should 
apply  to  any  other  State  of  the  Germanic  Confederation  that 
might  thereafter  declare  its  accession  thereto.  Under  that  pro- 
vision the  free  Hanseatic  city  of  Bremen  declared  their  acces- 
sion to  the  said  convention.  This  had  the  same  effect  as 
though  Bremen  had  joined  with  the  other  German  States  in 
making  the  original  treaty. 

VII.      BAVARIA,    SEPTEMBER    12,    1 853. 

Crimes. — 1.  Murder.  2.  Assault  with  intent  to  commit 
murder.  3.  Piracy.  4.  Arson.  5.  Robbery.  6.  Forgery.  7. 
Utterance  of  forged  papers.  8.  Fabrication  or  circulation  of 
counterfeit  money,  whether  coin  or  paper  money.  9.  Embez- 
zlement of  public  moneys. 

Citizens  of  neither  nation  are  surrendered  to  the  other. 

New  Crime. — Same  as  Prussia. 

VIII.      WURTTEMBERG,   OCTOBER    1 3,    1 853. 
The  King  of  Wurttemberg  formally  declared  his  accession 


EXTRADITION    TREATIES.  1 25 

to  the  treaty  of  June  16,  1852,  between  the  United  States  and 
Prussia  and  other  States. 

IX.     MECKLENBURG-SCHWERIN,    NOVEMBER    26,  1 853. 

The  Grand  Duke  of  Meeklenburg-Schwerin  officially  de- 
clared his  accession  to  the  treaty  of  June  16,  1852,  between 
Prussia  and  the  United  States. 

X.      MECKLENBERG-STERLITZ,  DECEMBER  2,   1 853. 

The  Grand  Duke  of  Mecklenberg-Sterlitz  formally  acceded 
to  the  same  treaty. 

XI.      OLDENBURG,    DECEMBER   30,    1 853. 
The  Grand  Duke  of  Oldenburg  came  in  to  the  same  treaty. 

XII.      SCHAUMBURG-LIPPE,   JUNE    7,    1 854. 
The  Reigning  Prince  of  Schaumburg-Lippe  acceded  to  the 
same  treaty. 

XIII.      HANOVER,   JANUARY    1 8,    1 855. 

The  crimes  and  other  conditions  of  this  treaty  are  exactly 
the  same  as  that  made  with  Bavaria,  No.  vn. 

XIV.      TWO   SICILIES,    OCTOBER    I,    1 855. 

Crimes. —  1.  Murder  (including  assassination,  parricide,  in- 
fanticide and  poisoning).  2.  Attempt  to  commit  murder.  3. 
Rape.  4.  Piracy.  5.  Arson.  6.  Making  and  uttering  false 
money.  7.  Forgery,  including  forgery  of  evidences  of  public 
debt,  bank  bills  and  bills  of  exchange.  8.  Robbery  with  vio- 
lence, intimidation,  or  forcible  entry  of  an  inhabited  house. 
9.  Embezzlement  by  public  officers,  including  appropriation  of 
public  funds,  when  these  crimes  are  subject  to  the  punishment 
della  reclusione  or  other  severe  punishment  by  the  code  of  the 
Two  Sicilies  and  to  infamous  punishment  in  the  United  States. 

The  executive  of  each  country  makes  the  surrender. 

Citize?is  and  subjects  are  exempt. 


126  HOW    TO    PROCEED. 

Political  offenses  and  those  committed  prior  to  the  treaty 
are  excluded. 

Termination. — This  treaty  can  be  terminated  by  either 
party  by  giving  twelve  months'  notice  of  a  desire  so  to  do. 

XV.       AUSTRIA,    JULY    3,   1 856. 

Crimes. — 1.  Murder.  2.  Assault  with  intent  to  commit 
murder.  3.  Piracy.  4.  Arson.  5.  Robbery.  6.  Forgery. 
7.  Fabrication  or  circulation  of  counterfeit  money,  whether 
coin  or  paper  money.     8.    Embezzlement  of  public  moneys. 

Citizens  are  not  surrendered  by  either  party. 

Political  offenses  and  crimes  committed  prior  to  date  of 
treaty  are  excluded. 

New  Crimes. — The  fugitive  who  has  committed  a  crime  in 
the  country  to  which  he  has  fled  will  not  be  delivered  up  until 
he  has  been  discharged  from  that. 

XVI.       BADEN,    JANUARY    20,    1 857. 

Crimes. — 1.  Murder.  2.  Assault  with  intent  to  commit 
murder.  3.  Piracy.  4.  Arson.  5.  Robbery.  6.  Forgery. 
7.  Fabrication  or  circulation  of  counterfeit  money,  whether 
coin  or  paper  money.     8.  Embezzlement  of  public  moneys. 

Evidence  same  as  in  Great  Britain. 

Citizens  are  not  delivered  up  by  either  party. 

New  crime  same  as  Austria. 

Political  crimes  are  exempt. 

XVII.      SWEDEN    AND    NORWAY,    MARCH    21,    i860. 

Crimes. — 1.  Murder  (including  assassination,  parricide,  in- 
fanticide, and  poisoning).  2.  Attempt  to  commit  murder.  3. 
Rape.  4.  Piracy  (including  mutiny  on  board  a  ship,  whenever 
the  crew  or  part  thereof,  by  fraud  or  violence  against  the  com- 
mander, have  taken  possession  of  the  vessel).  5.  Arson.  6. 
Robbe^.  7.  Burglary.  8.  Forgery.  9.  Fabrication  or  cir- 
culation of  counterfeit  money,  whether  coin  or  paper  money. 


EXTRADITION   TREATIES.  1 27 

to.    Embezzlement  by  public  officers,  including  appropriation 
of  public  funds. 

Citizens  are  not  surrendered  by  either  party. 

Political  offenses  are  exempt. 

New  crimes  same  as  Austria. 

XVIII.    VENEZUELA,    AUGUST   27,    i860. 

Crimes. — 1.  Murder  (including  assassination,  parricide,  in- 
fanticide and  poisoning).  2.  Attempt  to  commit  murder.  3. 
Rape.  4.  Forgery.  5.  Counterfeiting  of  money.  6.  Arson. 
7.  Robbery  with  violence,  intimidation  or  forcible  entry  of  an 
inhabited  house.  8.  Piracy.  9.  Embezzlement  by  public  offi- 
cers or  by  persons  hired  or  salaried,  to  the  detriment  of  their 
employers,  when  these  crimes  are  subject  to  infamous  punish- 
ment. 

The  executives  make  the  surrender. 

Political  offenses  and  crimes  committed  prior  to  date  of 
treaty  exempt. 

This  treaty  was  made  for  eight  years  and  then  to  continue 
indefinitely,  each  party  having  the  power  to  arrest  the  opera- 
tions of  the  treaty  at  any  time  by  giving  twelve  months'  notice. 

XIX.      MEXICO,    DECEMBER    II,    1861. 

Crimes. —  1.  Murder  (including  assassination,  parricide,  in- 
fanticide and  poisoning).  2.  Assault  with  intent  to  commit 
murder.  3.  Mutilation.  4.  Piracy.  5.  Arson.  6.  Rape.  7. 
Kidnaping,  defining  the  same  to  be  the  taking  and  carrying 
away  of  a  free  person  by  force  or  deception.  8.  Forgery,  in- 
cluding the  forging  or  making,  or  knowingly  passing  or  putting 
in  circulation  counterfeit  coin  or  bank  notes,  or  other  paper 
current  as  money,  with  intent  to  defraud  any  person  or  persons. 
9.  The  introduction  or  making  of  instruments  for  the  fabrica- 
tion of  counterfeit  coin  or  bank  notes,  or  other  paper  current 
as  money.     10.  Embezzlement  of  public  moneys.     11.  Robbery, 


128  HOW    TO    PROCEED. 

defining  the  same  to  be  the  felonious  and  forcible  taking  from 
the  person  of  another  of  goods  or  money,  to  any  value,  by  vio- 
lence or  putting  him  in  fear.  12.  Burglary,  defining  the  same 
to  be  breaking  and  entering  into  the  house  of  another  with  in- 
tent to  commit  felony.  13.  The  crime  of  larceny  of  cattle  or 
other  goods  and  chattels,  of  the  value  of  twenty-five  dollars  or 
more,  when  the  same  is  committed  within  the  frontier  States 
or  Territories  of  the  contracting  parties. 

The  usual  rule  of  evidence  applies  in  this  treaty. 

Requisition  is  made  (in  case  the  crime  is  committed  in  the 
frontier  States  or  Territories  of  the  contracting  parties) 
"through  their  respective  diplomatic  agents,  or  through  the 
chief  civil  authority  of  said  States  or  Territories,  or  through 
such  chief  civil  or  judicial  authority  of  the  districts  or  counties 
bordering  on  the  frontier  as  may  for  this  purpose  be  duly  au- 
thorized by  the  said  chief  civil  authority  of  the  said  frontier 
States  or  Territories,  or  when,  from  any  cause,  the  civil  au- 
thority of  such  State  or  Territory  shall  be  suspended,  through 
the  chief  military  officer  in  command  of  such  State  or  Terri- 
tory." 

Surrender  is  made  by  the  executive  authority  of  each 
country  "except  in  cases  of  crimes  committed  within  the 
limits  of  the  frontier  States  or  Territories,  in  which  latter  case 
the  surrender  may  be  made  by  the  chief  civil  authority  thereof, 
or  such  chief  civil  or  judicial  authority  of  the  districts  or 
counties  bordering  on  the  frontier  as  may  for  this  purpose  be 
duly  authorized  by  the  said  chief  civil  authority  of  the  said 
frontier  States  or  Territories,  or  if,  from  any  cause,  the  civil 
authority  of  such  State  or  Territory  shall  be  suspended,  then 
such  surrender  may  be  made  by  the  chief  military  officer  in 
command  of  such  State  or  Territory." 

Following  are  exempt:  political  offenses;  fugitive  slaves; 
criminals  who,  when  the  offense  was  committed,  shall   have 


EXTRADITION   TREATIES.  1 29 

been  held  in  the  place  where  the  offense  was  committed  in  the 
condition  of  slaves;  crimes  enumerated  committed  anterior  to 
exchange  of  ratifications  of  this  treaty;  and  citizens — neither 
party  delivers  up  its  own  citizens. 

The  treaty  can  be  abrogated  at  any  time  by  either  party 
giving  twelve  months'  notice  of  a  desire  to  do  so. 

XX.       HAYTI,    NOVEMBER   3,    1 864. 

Crimes. — 1.  Murder  (including  assassination,  parricide,  in- 
fanticide and  poisoning).  2.  Attempt  to  commit  murder.  3. 
Piracy.  4.  Rape.  5.  Forgery.  6.  Counterfeiting  of  money. 
7.  Utterance  of  forged  paper.  8.  Arson.  9.  Robbery.  10. 
Embezzlement  by  public  officers,  or  by  persons  hired  or  sal- 
aried, to  the  detriment  of  their  employers,  when  these  crimes 
are  subject  to  infamous  punishment. 

Surre?ider  is  made  by  the  executives. 

Political  offenses  and  crimes  committed  before  the  date  of 
the  treaty  exempt. 

Citizens. — Neither  party  obliged  to  deliver  its  own  citizens. 

Treaty  made  for  eight  years  and  continuable  indefinitely; 
may  be  terminated  by  either  party  on  twelve  months'  notice. 

XXI.       DOMINICAN    REPUBLIC,    FEB.    8,    1 867. 

Crimes.— \.  Murder  (including  assassination,  parricide,  in- 
fanticide and  poisoning).  2.  Attempt  to  commit  murder.  3. 
Rape.  4  Forgery.  5.  Counterfeiting  of  money.  6.  Arson. 
7.  Robbery,  with  violence,  intimidation,  or  forcible  entry  of  an 
inhabited  house.  8.  Piracy.  9.  Embezzlement  by  public  offi- 
cers, or  by  persons  hired  or  salaried  to  the  detriment  of  their 
employers,  when  these  crimes  are  subject  to  infamous  punish- 
ment 

Surrender  is  made  by  the  executives. 

Political  offenses  and  crimes  committed  prior  to  the  date  of 
the  treaty  are  exempt. 
9 


130  HOW   TO   PROCEED. 

Treaty  was  concluded  for  a  term  of  eight  years  from  en- 
change  of  ratifications  and  then  indefinitely,  either  party  now- 
having  privilege  to  arrest  its  operations  by  giving  twelve 
months'  notice  to  the  other. 

XXII.       ITALY,    MARCH    23,    1 868. 

Crimes. — 1.  Murder,  comprehending  the  crimes  designated 
in  the  Italian  penal  code  by  the  terms  of  parricide,  assassina- 
tion, poisoning  and  infanticide.  2.  Attempt  to  commit  murder. 
3.  Rape.  4  Arson.  5  Piracy.  6  Mutiny  on  board  a  ship, 
whenever  a  crew  or  a  part  thereof,  by  fraud  or  violence  against 
the  commander,  have  taken  possession  of  the  vessel.  7.  Burg- 
lary, defined  to  be  the  action  of  breaking  and  entering  by  night 
into  the  house  of  another  with  intent  to  commit  felony.  8. 
Robbery,  defined  to  be  the  action  of  feloniously  and  forcibly 
taking  from  the  person  of  another  goods  or  money,  by  violence 
or  putting  him  in  fear.  9.  Forgery,  by  which  is  understood 
the  utterance  of  forged  papers,  the  counterfeiting  of  public 
sovereign  or  government  acts.  10.  Fabrication  or  circulation 
of  counterfeit  money,  either  coin  or  paper,  of  public  bonds, 
bank  notes  and  obligations,  and,  in  general,  of  any  title  and  in- 
strument of  credit  whatsoever,  the  counterfeiting  of  seals,  dies, 
stamps  and  marks  of  State  and  public  administrations,  and  the 
utterance  thereof.  M,  The  embezzlement  of  public  moneys 
committed  within  the  jurisdiction  of  either  party,  by  public  of- 
ficers or  depositors.  r"2.  Embezzlement  by  any  person  or  per- 
sons hired  or  salaried  to  the  detriment  of  their  employers,  when 
these  crimes  are  subject  to  infamous  punishment. 

Political  offenses  are  exempt. 

Persons  delivered  up  for  any  of  the  crimes  enumerated 
shall  not  be  tried  for  any  ordinary  crime  committed  previously 
to  that  for  which  his  surrender  is  asked. 

New  Crime. — If  fugitive  has  committed  a  new  crime  in  the 


EXTRADITION   TREATIES.  131 

country  to  which  he  has  fled,  his  extradition  may  be  deferred 
until  he  is  discharged  from  that. 

Requisitions  shall  be  made  by  the  diplomatic  agents  of  the 
contracting  parties,  or,  if  they  are  absent,  by  superior  consular 
officers. 

Convicts  and  fugitives  charged  with  crime  are  alike  extra- 
dited. 

The  treaty  was  made  for  five  years  from  date  of  ratification, 
and  if  neither  party  gave  notice  six  months  before  expiration 
of  time  of  a  desire  to  withdraw,  then  it  was  to  continue  for  an- 
other five  years  under  same  conditions.  It  can  now  be  arrested 
at  the  end  of  any  five  years  from  the  date  of  its  ratification  by 
either  party  giving  six  months'  previous  notice. 

Additional  Article,  Jan.  21,  1869. — The  concluding  paragraph 
of  second  article,  relating  to  crimes,  was  amended  so  as  to 
read :  Embezzlement  by  any  person,  or  persons,  hired  or  sal- 
aried, to  the  detriment  of  their  employers,  when  these  crimes 
are  subject  to  infamous  punishment  according  to  the  laws  of 
the  United  States,  and  criminal  punishment  according  to  the 
laws  of  Italy. 

XXIII.      REPUBLIC   OF   SALVADOR,    MAY   23,    1870. 

Crimes. — 1.  Murder,  comprehending  the  crimes  designated 
in  the  penal  codes  of  the  contracting  parties  by  the  terms 
homicide,  parricide,  assassination,  poisoning  and  infanticide. 
2.  Attempt  to  commit  murder.  3.  Rape.  4.  Arson.  5.  Pi- 
racy. 6.  Mutiny  on  board  a  ship  whenever  a  crew,  or  part 
thereof,  by  fraud  or  violence  against  the  commander,  have 
taken  possession  of  the  vessel.  7.  Burglary,  defined  to  be  the 
action  of  breaking  and  entering  by  night  into  the  house  of  an- 
other, with  intent  to  commit  felony.  8.  Robbery,  defined  to 
be  the  action  of  feloniously  and  forcibly  taking  from  the  per- 
son of  another  goods  or  money  by  violence,  or  putting  him  in 
fear.     9.  Forgery,  by  which  is  understood  the  utterance  of 


132  HOW    TO    PROCEED. 

forged  papers,  the  counterfeiting  of  public,  sovereign  or  gov- 
ernment acts.  10.  Fabrication  or  circulation  of  counterfeit 
money,  either  coin  or  paper,  of  public  bonds,  bank-notes,  and 
obligations,  and,  in  general,  of  all  things  being  titles  or  instru- 
ments of  credit,  the  counterfeiting  of  seals,  dies,  stamps,  and 
marks  of  State  and  public  administration,  and  the  utterance 
thereof.  1 1 .  Embezzlement  of  public  moneys,  committed  within 
the  jurisdiction  of  either  party,  by  public  officers  or  depositors. 
12.  Embezzlement  by  any  person  or  persons,  hired  or  salaried. 
to  the  detriment  of  their  employers,  when  these  crimes  are 
subject  to  infamous  punishment. 

Political  crimes  are  exempt,  and  a  person  delivered  up  to 
be  tried  for  one  of  these  enumerated  crimes  shall  not  be  tried 
for  any  ordinary  crime  committed  before  the  one  for  which  he 
was  extradited. 

New  Crime.     Same  as  Norway  and  Sweden. 

In  no  case  does  either  of  the  high  contracting  parties  deliv- 
er up  its  own  subjects  or  citizens.  If  the  crime  complained  of 
is  one  for  which  he  would  be  punished  in  his  own  country,  the 
evidence,  information,  documents,  instruments  or  tools  used  in 
its  commission,  etc.,  may  be  transmitted  to  his  country  for  the 
purpose  of  prosecuting  the  case  there. 

Requisitions  shall  be  made  by  the  respective  diplomatic 
agents  of  the  contracting  parties,  or  in  their  absence,  by  su- 
perior consular  officers. 

Convicts  and  persons  charged  with  crime  are  both  extra- 
dited. 

Treaty  made  for  ten  years  from  date  of  exchange  of  ratifi- 
cations, and  if  neither  party  gives  six  months'  notice  of  desire 
to  withdraw,  it  shall  continue  ten  years  longer  and  so  on. 

XXIV.       NICARAGUA   JUNE    25,    1870. 

Crimes. — 1.  Murder,  comprehending  assassination,  parri- 
cide, infanticide  and  poisoning.     2.  Rape.     3.    Arson.     4.    Pi- 


EXTRADITION   TREATIES.  1 33 

racy.  5.  Mutiny  on  board  a  ship,  whenever  the  crew  or  a  part 
thereof,  by  fraud  or  violence  against  the  commander,  have 
taken  possession  of  the  vessel.  6.  Burglary,  defined  same  as 
in  Republic  of  Salvador.  7.  Robbery,  defined  same  as  in  Re- 
public of  Salvador.  8.  Forgery,  by  which  is  understood  the 
utterance  of  forged  papers,  the  counterfeiting  of  public,  sov- 
ereign or  government  acts.  9  Fabrication  or  circulation  of 
counterfeit  money,  either  coin  or  paper,  of  public  bonds,  bank 
notes,  and  obligations,  and,  in  general,  of  all  titles  or  instru- 
ments of  credit,  the  counterfeiting  of  seals,  dies,  stamps  and 
marks  of  State  and  public  administrations,  and  the  utterance 
thereof.  10.  Embezzlement  of  public  moneys,  committed 
within  the  jurisdiction  of  either  party,  by  public  officers  or  de- 
positors. 1 1 .  Embezzlement  by  any  person  or  persons  hired 
or  salaried,  to  the  detriment  of  their  employers,  when  these 
crimes  are  subjected  to  infamous  punishment. 

Political  offenses  are  exempt. 

Persons  delivered  up  shall  not  be  tried  for  any  ordinary 
crime  committed  previously  to  that  for  which  their  surrender 
is  asked. 

New  Crime. — If  the  fugitive  has  committed  a  new  crime  in 
the  country  in  which  he  has  sought  asylum,  and  has  been  ar- 
rested or  convicted  therefor,  his  extradition  may  be  deferred 
until  he  shall  have  been  acquitted,  or  served  out  his  term  of 
imprisonment. 

Requisitions  shall  be  made  by  the  respective  diplomatic 
agents  of  the  contracting  parties,  or,  in  their  absence,  by  su- 
perior consular  officers. 

Convicts  are  extradited.  A  copy  of  the  sentence  of  the 
court  in  which  he  may  have  been  convicted,  authenticated  un- 
der its  seal,  and  an  attestation  of  the  official  character  of  the 
judge  by  the  proper  executive  authority,  and  of  the  latter  by 
the  Minister  or  Consul  of  the  United  States  or  of  Nicaragua, 
respectively,  shall  accompany  the  requisition. 


134  HOW   TO    PROCEED. 

If  the  fugitive  is  charged  with  crime  only,  then  a  duly  au- 
thenticated copy  of  the  warrant  for  his  arrest  in  the  country 
where  the  crime  may  have  been  committed,  and  of  the  deposi- 
tions upon  which  such  warrant  may  have  been  issued,  must 
accompany  the  requisition 

The  executives  of  the  respective  countries  issue  the  war- 
rants for  the  apprehension  of  the  fugitive  and  he  is  brought 
before  the  proper  judicial  tribunal  for  examining  the  question 
of  extradition. 

Treaty  continues  in  force  five  years  from  the  date  of  ratifi- 
cation, and  if  neither  party  gives  the  other  six  months'  previ- 
ous notice  of  its  intention  to  withdraw,  the  treaty  shall  con- 
tinue five  years  longer,  and  so  on. 

XXV.  PERU,  SEPTEMBER  12,  1870. 
Crimes. — 1.  Murder,  comprehending  the  crimes  of  parri- 
cide, assassination,  poisoning  and  infanticide.  2  Rape,  abduc- 
tion by  force.  3.  Bigamy.  4.  Arson.  5.  Kidnaping,  defin- 
ing the  same  to  be  the  taking  or  carrying  away  of  a  person  by 
force  or  deception  6.  Robbery,  highway  robbery,  larceny. 
7.  Burglary,  defined  to  be  the  action  of  breaking  and  entering 
by  night  time  into  the  house  of  another  person  with  intent  to 
commit  a  felony.  8.  Counterfeiting  or  altering  money,  the  intro- 
duction or  fraudulent  commerce  of  and  in  false  coin  or  money ; 
counterfeiting  the  certificates  or  obligations  of  the  government, 
of  bank  notes  and  of  any  other  documents  of  public  credit, 
the  altering  and  use  of  the  same;  forging  or  altering  judicial 
judgments  or  decrees  of  the  government  or  courts,  of  the  seals, 
dies,  postage  stamps  and  revenue  stamps  of  the  government, 
and  the  use  of  the  same;  forging  public  and  authentic  deeds 
and  documents,  both  commercial  and  of  banks,  and  the  use  of 
the  same.  9.  Embezzlement  of  public  moneys,  committed 
within  the  jurisdiction  of  either  party,  by  public  officers  or 
bailees,  and  embezzlement  by  any  person  hired  or  salaried.   10. 


EXTRADITION    TREATIES.  1 35 

Fraudulent  bankruptcy,  n.  Fraudulent  barratry.  12.  Muti- 
ny on  board  of  a  vessel  when  the  persons  who  compose  the 
crew  have  taken  forcible  possession  of  the  same,  or  have  trans- 
ferred the  ship  to  pirates.  13.  Severe  injuries  intentionally 
caused  on  railroads,  to  telegraph  lines  or  to  persons  by  means 
of  explosion  of  mines  or  steam-boilers.      14.  Piracy. 

Political  offenses  are  exempt. 

Enumerated  crimes  committed  anterior  to  the  date  of  ex- 
change of  ratifications  are  also  excluded. 

Neither  party  delivers  up  its  own  citizens. 

Convicts  are  extradited  A  condemnatory  sentence,  or  or- 
der of  arrest,  or  other  process  equivalent  to  such  order,  must 
be  sent  with  the  demand.  The  character  and  gravity  of  the 
imputed  acts  and  the  dispositions  of  the  penal  laws,  relative  to 
the^case,  must  also  be  stated  The  documents  sent  with  the  de- 
mand must  be  originals  or  certified  copies,  legally  authorized 
by  the  tribunals,  or  by  a  competent  person.  If  possible,  a  de- 
scription of  the  person  sought  to  be  extradited  should  be  sent, 
or  other  proof  toward  his  identity 

If  the  person  accused  is  not  a  citizen  of  either  of  the  coun- 
tries the  one  granting  the  requisition  will  inform  the  Govern- 
ment of  the  country  to  which  the  accused  or  condemned  be- 
longs, of  the  demand  made,  and  if  the  last  named  Government 
reclaims  the  individual  on  its  own  account  for  trial  in  its  own 
tribunals,  the  Government  on  which  the  demand  was  made 
may,  at  will,  deliver  the  criminal  to  the  State  in  whose  terri- 
tories the  crime  was  committed,  or  to  that  to  which  the  crim- 
inal belongs. 

If  an  accused  person  is  demanded  under  this  treaty,  and 
also  at  the  same  time  by  some  other  Government,  he  shall  be 
delivered  to  the  one  charging  the  gravest  offense,  and  when  the 
offenses  are  of  a  like  nature  and  gravity,  the  delivery  shall  be 
made  to  the  Government  making  the  first  demand,  and  if  the 


136  HOW   TO    PROCEED. 

dates  be  the  same,  then  to  the  nation  to  which  the  criminal 
may  belong. 

New  Crime. — If  the  person  claimed  is  accused  or  sentenced 
in  the  country  where  he  may  have  taken  refuge,  for  a  crime  or 
misdemeanor  committed  in  that  country,  his  delivery  may  be 
delayed  until  the  definitive  sentence  releasing  him  be  pronoun- 
ced, or  until  such  time  as  he  may  have  complied  with  the  pun- 
ishment inflicted  on  him  in  the  country  where  he  took  refuge. 

In  cases  not  admitting  of  delay,  and  especially  in  those 
where  there  is  danger  of  escape,  each  of  the  two  Governments 
authorized  by  the  order  for  apprehension,  may,  by  the  most 
expeditious  means,  ask  and  obtain  the  arrest  of  the  person  ac- 
cused or  sentenced,  on  condition  of  presenting  the  said  order 
for  apprehension  as  soon  as  may  be  possible,  not  exceeding  four 
months. 

Treaty  continues  in  force  until  abrogated  by  mutual  con- 
sent, and  the  party  desiring  to  withdraw  must  give  twelve 
months'  notice  to  the  other  of  such  desire. 

This  treaty  provides  for  the  delivery  of  persons  charged 
with  these  crimes,  whether  as  principals,  accessories  or  accom- 
plices. 

XXVI.      ORANGE    FREE    STATE,    DECEMBER    22,    1 87 1. 

Crimes. — 1.  Murder  (including  assassination,  parricide,  in- 
fanticide and  poisoning).  2.  Attempt  to  commit  murder.  3. 
Rape.  4.  Forgery,  or  the  emission  of  forged  papers.  5.  Ar- 
son. 6.  Robbery  with  violence,  intimidation  or  forcible  entry 
of  an  inhabited  house.  7.  Piracy.  8.  Embezzlement  by  pub- 
lic officers,  or  by  persons  hired  or  salaried,  to  the  detriment  of 
their  employers,  when  these  crimes  are  subject  to  infamous 
punishment. 

Surrender  is  made  by  the  executives. 

Political  offenses  are  excluded. 


EXTRADITION    TREATIES.  1 37 

Offenses  committed  before  the  date  of  the  treaty  are  ex- 
cluded. 

Treaty  was  concluded  for  ten  years  from  date  of  ratification, 
and  then  indefinitely  from  year  to  year,  each  party  having  the 
privilege  to  withdraw  by  giving  to  the  other  twelve  months' 
notice  of  a  desire  to  do  so. 

XXVII.       ECUADOR,   JUNE    28,   l8j2. 

Crimes. —  i.  Murder,  including  assassination,  parricide,  in- 
fanticide and  poisoning.  2.  Rape.  3.  Arson.  4.  Piracy  and 
mutiny  on  ship-board,  when  the  crew  or  a  part  thereof,  by 
fraud  or  violence  against  the  commanding  officer,  have  taken 
possession  of  the  vessel.  5.  Burglary,  this  being  understood 
as  the  act  of  breaking  or  forcing  an  entrance  into  another  man's 
house  with  intent  to  commit  crime.  6.  Robbery,  this  being 
defined  as  the  act  of  taking  from  the  person  of  another,  goods 
or  money  with  criminal  intent,  using  violence  or  intimidation. 
7.  Forgery,  which  is  understood  to  be  the  willful  use  or  cir- 
culation of  forged  papers  or  public  documents.  8.  Fabrica- 
tion or  circulation  of  counterfeit  money,  either  coin  or  paper, 
of  public  bonds,  bank  bills  and  securities,  and,  in  general,  of  any 
kind  of  titles  to  or  instruments  of  credit,  the  counterfeiting  of 
stamps,  dies,  seals  and  marks  of  the  State  and  of  the  admin- 
istrative authorities  and  the  sale  or  circulation  thereof.  9.  Em- 
bezzlement of  public  property,  committed  within  the  jurisdic- 
tion of  either  party,  by  public  officers  or  depositaries. 

Political  offenses  are  exempt. 

Crimes  committed  previously  to  the  one  for  which  the  per- 
son is  extradited  are  also  exempt. 

New  Crime. — Extradition  may  be  deferred  until  crime  com- 
mitted in  country  of  refuge  is  atoned  for. 

Requisitions  are  made  by  the  diplomatic  agents,  or,  in  their 
absence,  by  superior  consular  officers. 

Convicts  may  be  extradited  and  in  this  case  the  requisition 


138  HOW   TO   PROCEED. 

must  be  accompanied  by  a  copy  of  the  sentence  of  the  court 
that  has  convicted  him,  authenticated  under  seal,  and  an  attes- 
tation of  the  official  character  of  the  judge  who  signed  it, 
made  by  the  proper  executive  authority  ;  also  by  an  authenti- 
cation of  the  latter  by  the  Minister  or  Consul  of  the  United 
States  or  Ecuador,  respectively.  When  the  fugitive  is  merely 
charged  with  crime,  a  duly  authenticated  copy  of  the  warrant 
for  his  arrest  in  the  country  where  the  crime  has  been  com- 
mitted, and  of  any  evidence  in  writing  upon  which  such  warrant 
may  have  been  issued,  must  accompany  the  requisition.  The 
executive  may  then  order  the  arrest,  in  order  that  he  may  be 
brought  before  the  judicial  authority,  which  is  competent  to 
examine  the  question  of  extradition.  If  the  evidence  and  law 
show  the  case  to  be  within  the  treaty  the  fugitive  will  be  de- 
livered. 

The  treaty  was  made  for  ten  years  from  ratification,  and  in 
case  neither  party  gives  to  the  other  one  year's  notice  of  its  in- 
tention to  terminate  the  same,  it  shall  continue  in  force  for  an- 
other ten  years,  and  so  on. 

XXVIII.      THE   OTTOMAN    EMPIRE,   AUGUST    II,     1 874. 

Crimes. — Persons  shall  be  delivered  up  who  shall  have  been 
convicted  of,  or  be  charged,  according  to  the  provisions  of  this 
convention,  with  any  of  the  following  crimes: 

1,  Murder,  comprehending  the  crimes  designated  by  the 
terms  of  parricide,  assassination,  poisoning  and  infanticide. 
2.  The  attempt  to  commit  murder.  3.  Rape.  4.  Arson.  5. 
Piracy  and  mutiny  on  board  a  ship,  whenever  the  crew,  or  a 
part  thereof,  by  fraud  or  violence  againt  the  commander,  have 
taken  possession  of  the  vessel.  6.  Burglary,  defined  to  be  the 
action  of  breaking  and  entering  by  night  into  the  house  of  an- 
other, with  intent  to  commit  felony.  7.  Robbery,  defined  to 
be  the  action  of  feloniously  and  forcibly  taking  from  the  per- 
son of  another,  goods  or  money,  by  violence  or  putting  him  in 


EXTRADITION   TREATIES.  139 

fear.  8.  Forgery,  by  which  is  understood  the  utterance  of 
forged  papers,  the  counterfeiting  of  public,  sovereign  or  gov- 
ernment acts.  9.  Fabrication  or  circulation  of  counterfeit 
money,  either  coin  or  paper,  of  public  bonds,  bank  notes  and 
obligations,  and,  in  general,  of  all  things  being  titles  and  instru- 
ments of  credit,  the  counterfeiting  of  seals,  dies,  stamps  and 
marks  of  State  and  public  administrations,  and  the  utterance 
thereof.  10.  Embezzlement  of  public  moneys,  Committed 
within  the  jurisdiction  of  either  party,  by  public  officers  or  de- 
positors. 1 1 .  Embezzlement  by  any  person  or  persons,  hired 
or  salaried,  to  the  detriment  of  their  employers,  when  these 
crimes  are  subject  to  infamous  punishment. 

Political  crimes  are  exempt. 

Persons  delivered  up  for  one  of  the  enumerated  crimes 
shall  not  be  tried  for  any  ordinary  crime  committed  previously 
to  that  for  which  he  was  extradited. 

New  Crime. — Persons  arrested  or  convicted  of  a  crime  in  the 
country  in  which  he  has  sought  refuge  may  not  be  surrendered 
until  he  shall  have  been  acquitted  or  have  served  out  his  term 
of  imprisonment  to  which  he  may  have  been  sentenced. 

Requisitions  shall  be  made  by  the  diplomatic  agents,  or,  in 
case  of  their  absence,  by  superior  consular  officers.  In  case  of 
a  convict  a  copy  of  the  sentence  of  the  court  in  which  he  was 
convicted,  authenticated  under  its  seal,  and  an  attestation  of 
the  official  character  of  the  judge  by  the  proper  executive 
authority,  and  of  the  latter  by  the  Minister  or  Consul  of  the 
United  States  or  the  Sublime  Porte,  respectively,  shall  accom- 
pany the  requisition. 

When  the  fugitive  is  charged  with  crime  only,  a  duly  au- 
thenticated copy  of  the  warrant  for  his  arrest,  or  of  the  deposi- 
tions upon  which  such  warrant  was  based,  must  accompany 
the  requisition.  The  executive  may  then  issue  a  warrant  for 
the  apprehension  of  the  fugitive  in  order  that  he  may  be 


I40  HOW   TO   PROCEED. 

brought  before  the  proper  judicial  authority  for  examination. 
If  the  law  and  the  evidence  show  the  case  to  be  within  the 
provisions  of  this  treaty  then  he  shall  be  surrendered. 

Neither  of  the  parties  is  obliged  to  deliver  up  its  own 
citizens. 

The  treaty  was  made  for  five  years  from  exchange  of  ratifi- 
cations, but  if  neither  party  gives  to  the  other  six  months' 
notice  of  its  intention  to  terminate  the  treaty  the  convention 
shall  remain  in  force  five  years  more  and  so  on. 

XXIX.      SPAIN,    JANUARY    5,    1 877. 

Crimes. —  Persons  charged  with  or  convicted  of  any  of  the 
following  crimes  shall  be  delivered  up :  1.  Murder,  compre- 
hending the  crimes  designated  by  the  terms  of  parricide,  assas- 
sination, poisoning  or  infanticide.  2.  Attempt  to  commit 
murder.  3.  Rape.  4.  Arson.  5.  Piracy  or  mutiny  on  board 
ship  when  the  crew  or  other  persons  on  board,  or  part  thereof, 
have  by  fraud  or  violence  against  the  commander,  taken  pos- 
session of  the  vessel.  6.  Burglary,  defined  to  be  the  act  of 
breaking  and  entering  into  the  house  of  another  in  the  night 
time  with  intent  to  commit  a  felony  therein.  7.  The  act  of 
breaking  and  entering  the  offices  of  the  Government  and  public 
authorities,  or  offices  of  banks,  banking-houses,  savings  banks, 
trust  and  insurance  companies,  with  intent  to  commit  a  felony 
therein.  8.  Robbery,  defined  to  be  the  felonious  and  forcible  tak- 
ing from  the  person  of  another,  goods  or  money,  by  violence  or 
putting  him  in  fear.  9.  Forgery,  or  the  utterance  of  forged 
papers.  10.  Forgery  or  falsification  of  the  official  acts  of  the 
Government  or  public  authority,  including  courts  of  justice, 
or  the  uttering  or  fraudulent  use  of  any  of  the  same.  1 1 .  Fab- 
rication of  counterfeit  money,  whether  coin  or  paper,  counter- 
feit titles  or  coupons  of  public  debt,  bank  notes  or  other  instru- 
ments of  public  credit ;  of  counterfeit  seals,  stamps,  dies  and 
marks  of  State  or  public  administration,  and  the  utterance, 


EXTRADITION    TREATIES.  141 

circulation,  or  fraudulent  use  of  any  of  the  above  mentioned 
objects.  12.  Embezzlement  of  public  funds,  committed  within 
the  jurisdiction  of  one  or  the  other  party,  by  public  officers  or 
depositaries.  13.  Embezzlement  by  any  person  or  persons, 
hired  or  salaried,  to  the  detriment  of  their  employers,  when 
these  crimes  are  subject  to  infamous  punishment.  14.  Kid- 
naping, defined  to  be  the  detention  of  a  person  or  persons  in 
order  to  exact  money  from  them  or  for  any  other  unlawful  end. 

Political  offenses  are  not  extraditable. 

Persons  surrendered  by  virtue  of  this  treaty  shall  not  be 
tried  or  punished  for  any  crime  or  offense  other  than  that  for 
which  they  were  extradited,  unless  it  be  one  of  the  crimes 
enumerated  above  and  committed  subsequent  to  the  exchange 
of  ratifications,  and  no  person  shall  be  extradited  for  any  crime 
committed  previous  to  the  ratification  of  the  treaty. 

If  from  lapse  of  time  or  other  lawful  cause  the  criminal  is 
exempt  from  prosecution  or  punishment  in  the  country  in 
which  the  crime  was  committed  he  shall  not  be  surrendered. 

New  Crime. — If  the  one  accused  be  actually  under  prose- 
cution, out  on  bail  or  in  custody  for  a  crime  or  offense  com- 
mitted in  the  country  where  he  has  sought  asylum,  or  shall 
have  been  convicted  thereof,  his  extradition  may  be  deferred 
until  such  proceedings  be  determined,  and  until  he  shall  have 
been  set  at  liberty  in  due  course  of  law. 

If  the  criminal  fugitive,  claimed  by  one  of  the  parties  to 
this  treaty,  is  also  at  the  same  time  claimed  by  some  other 
nation  under  treaty  with  it,  then  he  shall  be  delivered  to  the 
one  whose  demand  is  the  earliest  in  date. 

Neither  party  is  obliged  to  deliver  up  its  own  citizens  or 
subjects. 

Everything  found  in  the  possession  of  the  fugitive  at  the 
time  of  his  arrest  which  may  be  material  as  evidence  in  prov- 
ing his  crime  shall,  so  far  as  practicable,  be  delivered  up  with 


142  HOW    TO    PROCEED. 

his  person  at  the  time  of  his  surrender,  but  the  rights  of  third 
parties  in  regard  to  such  articles  shall  be  duly  respected. 

This  treaty  applies  to  all  foreign  or  colonial  possessions  of 
either  of  the  contracting  parties. 

Requisitions  shall  be  made  by  the  respective  diplomatic 
agents,  or  if  they  are  absent,  or  if  extradition  is  sought  from  a 
colonial  possession,  then  by  superior  consular  officers.  Upon 
their  request  a  warrant  of  arrest  is  issued  and  the  fugitive 
brought  before  the  court  that  the  evidence  of  criminality  may 
be  heard  and  considered.  If  the  evidence  be  deemed  sufficient 
*%*  the  prisoner  will  be  surrendered.  If  he  is  a  convict  the  party 
asking  his  surrender  must  present  a  copy  of  the  sentence  of 
the  court  before  which  he  was  convicted,  duly  authenticated. 
If  he  is  merely  charged  with  crime,  a  duly  authenticated  copy 
of  the  warrant  of  arrest  in  the  country  where  the  crime  was 
committed,  and  of  the  depositions  upon  which  it  was  issued, 
shall  be  produced  with  such  other  proof  as  may  be  deemed 
competent. 

The  treaty  may  be  terminated  at  any  time  by  either  party 
giving  to  the  other  six  months'  notice  of  a  desire  to  withdraw. 

XXX.      THE   NETHERLANDS,    MAY    22,    l88o. 

Crimes. — Persons  shall  be  delivered  up  who  shall  have 
been  charged  with,  or  convicted  of,  any  of  the  following  crimes: 
1.  Murder,  comprehending  the  crimes  of  assassination,  parri- 
cide, infanticide  and  poisoning.  2.  The  attempt  to  commit 
murder.  3.  Rape.  4.  Arson.  5.  Burglary,  or  the  correspond- 
ing crime  in  the  Netherlands  law  under  the  description  of 
thefts  committed  in  an  inhabited  house  by  night,  and  by 
breaking  in,  by  climbing  or  forcibly.  6.  Breaking  into  and 
entering  public  offices,  or  the  offices  of  banks,  banking-houses, 
savings  banks,  trust  companies,  or  insurance  companies,  with 
intent  to  commit  theft  therein,  and  also  the  thefts  resulting 
from  such  act.     7.  Robbery,  or  the  corresponding  crime  pun- 


EXTRADITION   TREATIES.  1 43 

ished  in  the  Netherlands  law  under  the  description  of  theft 
committed  with  violence  or  by  means  of  threats.  8.  Forgery, 
or  the  utterance  of  forged  papers,  including  the  forgery  or  fal- 
sification of  official  acts  of  the  government  or  public  authority 
or  courts  of  justice  affecting  the  title  or  claim  to  money  or 
property.  9.  Counterfeiting,  falsifying,  or  altering  of  money, 
whether  coin  or  paper,  or  of  bank  notes,  or  instruments  of 
debt  created  by  National,  State  or  Municipal  Governments,  or 
coupons  thereof,  or  of  seals,  stamps,  dies  or  marks  of  State, 
or  the  utterance  or  circulation  of  the  same.  10.  Embezzle- 
ment by  public  officers  charged  with  the  custody  or  receipt  of 
public  funds.  11.  Embezzlement  by  any  person  or  persons 
hired  or  salaried,  to  the  detriment  of  their  employers,  where 
the  offense  is  subject  to  punishment  by  the  law  of  the  Nether- 
lands as  abus  de  confiance,  if  extradition  is  demanded  by  the 
United  States,  or  is  subject  to  punishment  as  a  crime  in  the 
United  States,  if  extradition  is  demanded  by  the  Netherlands. 

Political  offenses  are  exempt,  and  all  acts  connected  with 
such  crimes  or  offenses.  No  person  having  been  extradited 
under  this  treaty  shall  afterward  be  tried  for  any  political  of- 
fense committed  prior  to  his  extradition.  Crimes  committed 
before  ratification  of  treaty  are  exempt.  A  person  shall  not  be 
punished  or  tried  for  any  crime  other  than  the  one  for  which 
he  was  extradited,  unless  it  be  one  of  the  crimes  enumerated 
above,  and  committed  subsequent  to  the  exchange  of  ratifi- 
cation. 

A  fugitive  criminal,  exempt  from  prosecution  or  punish- 
ment by  lapse  of  time  or  otherwise,  in  the  country  demanding 
his  surrender,  shall  not  be  delivered  up ;  nor  in  case  his  ex- 
tradition is  asked  for  the  same  crime  for  which  he  has  been 
tried,  convicted  or  acquitted  in  that  country,  or  so  long  as  he 
is  under  prosecution  for  the  same. 

New  Crime. — If  fugitive  has  committed  a  new  crime  in  the 


m 


144  HOW   TO   PROCEED. 

country  in  which  he  has  taken  refuge,  the  surrender  may  be 
deferred  until  he  is  duly  set  at  liberty  from  that  offense. 

If  two  or  more  demands  are  made  at  the  same  time,  for  the 
same  fugitive,  the  one  shall  be  given  the  preference  which  is 
earliest  in  date. 

Citizens  are  not  delivered  up  by  either  party. 

Everything  found  in  possession  of  the  criminal  at  the  time 
of  his  arrest,  which  may  be  valuable  as  evidence  in  proving 
the  crime,  shall  so  far  as  is  practicable,  duly  respecting  the 
rights  of  third  parties  interested,  be  delivered  up  with  his  per- 
son at  the  time  of  surrender. 

Requisitions  shall  be  made  by  the  diplomatic  agents  of  the 
parties,  or  if  they  be  absent,  by  consular  officers. 

Convicts. — If  the  fugitive  has  been  convicted  of  a  crime,  a 
copy  of  the  sentence  of  the  court  in  which  he  may  have  been 
convicted,  authenticated  under  its  seal  and  accompanied  by  an 
attestation  of  the  official  character  of  the  judge  by  the  proper 
authority,  shall  be  furnished. 

If  the  fugitive  is  only  charged  with  crime,  a  duly  authenti- 
cated copy  of  the  warrant  of  arrest  in  the  country  where  the 
crime  was  committed,  and  of  the  depositions  upon  which  such 
warrant  was  issued,  shall  be  produced,  authenticated  as  above 
provided,  with  such  other  evidence  as  may  be  deemed  compe- 
tent in  the  case. 

The  treaty  took  effect  on  the  twentieth  day  after  its  pro- 
mulgation, and  continues  until  either  party  shall  terminate  it 
by  giving  to  the  other  six  months' notice. 

XXXI.       BELGIUM,    JUNE    1 3,    1 882. 

Crimes. — Persons  shall  be  delivered  up  who  shall  be  convict- 
ed of  or  charged  with  any  of  the  following  crimes :  1 .  Murder, 
comprehending  the  crimes  designated  in  the  Belgian  Penal  Code 
by  the  terms  parricide,  assassination,  poisoning  and  infanticide. 
2.  Attempt  to  commit  murder.     3.  Rape,   or  attempt  to  com- 


EXTRADITION   TREATIES.  1 45 

mit  rape.  4.  Bigamy.  5.  Abortion.  6.  Arson.  7.  Piracy, 
or  mutiny  on  shipboard  whenever  the  crew,  or  part  thereof, 
shall  have  taken  possession  of  the  vessel  by  fraud  or  by  vio- 
lence against  the  commander.  8.  Burglary,  defined  to  be  the 
act  of  breaking  and  entering  by  night  into  the  house  of  an- 
other, with  the  intent  to  commit  felony.  9.  Robbery,  defined 
to  be  the  act  of  feloniously  and  forcibly  taking  from  the  per- 
son of  another  money  or  goods  by  violence,  or  putting  him  in 
fear ;  and  the  corresponding  crimes  punished  by  Belgian  laws, 
under  the  description  of  thefts  committed  in  an  inhabited 
house  by  night,  and  by  breaking  in  by  climbing  or  forcibly, 
and  thefts  committed  with  violence  or  by  means  of  threats.  10. 
Forgery,  by  which  is  understood  the  utterance  of  forged  pa- 
pers, and  also  the  counterfeiting  of  public,  sovereign,  or  gov- 
ernmental acts.  11.  Fabrication  or  circulation  of  counterfeit 
money,  either  coin  or  paper,  or  of  counterfeit  public  bonds, 
coupons  of  the  public  debt,  bank  notes,  obligations,  or,  in  gen- 
eral, anything  being  a  title  or  instrument  of  credit ;  the  coun- 
terfeiting of  seals  and  dies,  impressions,  stamps,  marks  of 
State  and  public  administrations,   and  the  utterance  thereof. 

12.  Embezzlement  of  public  moneys,  committed  within  the 
jurisdiction  of  either  party  by  public  officers  and  depositaries. 

13.  Embezzlement  by  any  person,  or  persons,  hired  or  salaried 
to  the  detriment  of  their  employers,  when  the  crime  is  subject 
to  punishment  by  the  laws  of  the  place  where  it  was  commit- 
ted. 14.  Willful  and  unlawful  destruction,  or  obstruction,  of 
railroads,  which  endangers  human  life.  15.  Reception  of  arti- 
cles obtained  by  means  of  one  of  the  crimes  or  offenses  pro- 
vided for  by  this  treaty. 

Extradition  may  also  be  granted  for  the  attempt  to  commit 
any  of  the  crimes  above  enumerated  when  such  attempt  is 
punishable  by  the  laws  of  both  contracting  parties. 

A  person  surrendered  under  this  convention  shall  not  be 


I46  HOW    TO    PROCEED. 

tried  or  punished  in  the  country  to  which  his  extradition  has 
been  granted,  nor  given  up  to  a  third  power  for  a  crime  or  of- 
fense, not  provided  for  by  the  present  convention  and  commit- 
ted previously  to  his  extradition,  until  he  shall  have  been  al- 
lowed one  month  to  leave  the  country  after  having  been  dis- 
charged ;  and,  if  he  shall  have  been  tried  and  condemned  to 
punishment,  he  shall  be  allowed  one  month  after  having  suf- 
fered his  penalty,  or  having  been  pardoned. 

He  shall  moreover  not  be  tried  or  punished  for  any  crime 
or  offense  provided  for  by  this  convention  committed  previous 
to  his  extradition,  other  than  that  which  gave  rise  to  the  extra- 
dition, without  the  consent  of  the  Government  which  surren- 
dered him. 

The  consent  of  that  Government  shall  likewise  be  required 
for  the  extradition  of  the  accused  to  a  third  country,  unless  the 
accused  himself  shall  ask  of  his  own  accord  to  be  tried  or  to 
undergo  his  punishment,  or  when  he  shall  not  have  left  within 
the  space  of  time  above  specified  the  territory  of  the  country  to 
which  he  has  been  surrendered. 

Political  offenses  are  exempt ;  also  offenses  connected  there- 
with. When  a  person  has  been  extradited  under  this  treaty 
he  shall  in  no  case  be  prosecuted  and  punished  in  the  State  to 
which  he  was  extradited  on  account  of  a  political  crime  com- 
mitted by  him  previous  to  such  extradition,  or  on  account  of 
an  act  connected  with  such  political  crime  unless  he  has  been 
at  liberty  to  leave  the  country  for  one  month  after  having  been 
tried,  and  in  case  of  condemnation,  for  one  month  after  having 
suffered  his  punishment,  or  having  been  pardoned. 

An  attempt  against  the  life  of  the  head  of  a  foreign  Gov- 
ernment, or  against  that  of  any  member  of  his  family,  when 
such  attempt  comprises  the  act  either  of  murder,  or  assassina- 
tion, or  of  poisoning,  shall  not  be  considered  a  political  of- 
fense, or  an  act  connected  with  such  an  offense. 


EXTRADITION   TREATIES.  147 

Citizens  are  not  surrendered  by  either  party. 

New  Crime. —  As  in  other  treaties  the  fugitive  is  retained 
until  the  new  crime  is  atoned  for,  or  he  is  acquitted. 

Requisitions  shall  be  made  by  the  diplomatic  agents  of  the 
contracting  parties,  or,  in  the  event  of  their  absence,  by  supe- 
rior consular  officers. 

If  the  fugitive  is  a  convict,  a  copy  of  the  sentence  of  the 
court  in  which  he  was  convicted  under  its  seal,  and  attestation 
of  the  official  character  of  the  judge  by  the  proper  executive 
authority,  and  of  the  latter  by  the  Minister  or  Consul  of  the 
United  States  or  of  Belgium,  respectively,  shall  accompany  the 
requisition.  When  the  fugitive  is  only  charged  with  crime,  a 
duly  authenticated  copy  of  the  warrant  for  his  arrest  in  the 
country  where  the  crime  was  committed,  and  of  the  deposi- 
tions upon  which  such  warrant  was  issued,  must  accompany 
the  requisition  as  aforesaid. 

The  executives  issue  the  warrant  for  the  apprehension  of 
the  fugitive,  and  he  is  brought  before  the  proper  judicial 
tribunal,  and  if  decided  that,  according  to  the  law  and  evi- 
dence, the  extradition  is  due  pursuant  to  the  treaty,  the  fugi- 
tive may  be  given  up. 

When  proceedings  are  barred  against  the  fugitive  by  limit- 
ation of  time  or  otherwise,  extradition  shall  not  be  granted. 

Articles  found  in  possession  of  accused  and  obtained 
through  the  commission  of  the  acts  with  which  he  is  charged, 
or  that  may  be  used  as  evidence  of  the  crime  for  which  his  ex- 
tradition is  demanded,  shall  be  seized,  if  the  competent  au- 
thority shall  so  order,  and  shall  be  surrendered  with  his  person. 

But  the  rights  of  third  parties  in  such  articles  shall  be  re- 
spected. 

Treaty  took  effect  thirty  days  after  exchange  of  ratifications 
and  continues  until  either  party  shall  give  to  the  other  six 
months'  notice  of  a  desire  to  withdraw. 

This  treaty  superseded  the  one  of  March  19,  1874. 


148  HOW    TO    PROCEED. 

XXXII.      SPAIN  (SUPPLEMENTARY),  AUGUST  J,   1 882. 

Paragraph  5  of  article  11.,  of  the  treaty  of  Jan.  5,  1877,  re- 
lating to  piracy  or  mutiny  is  abrogated  and  the  following  sub- 
stituted : 

5.  Crimes  committed  at  sea  : 

(a.)  Piracy  as  commonly  known  and  defined  by  the  law  of 
nations. 

(6.)  Destruction  or  loss  of  a  vessel  caused  intentionally,  or 
conspiracy  and  attempt  to  bring  about  such  destruction  or 
loss,  when  committed  by  any  person  or  persons  on  board  of 
said  vessel,  on  the  high  seas. 

(c.)  Mutiny  or  conspiracy  by  two  or  more  members  of  the 
crew  or  other  persons  on  board  of  a  vessel  on  the  high  seas,  for 
the  purpose  of  rebelling  against  the  authority  of  the  captain  or 
commander  of  such  vessel,  or  by  fraud  or  violence,  taking 
possession  of  such  vessel. 

Paragraph  12,  of  said  article,  is  amended  to  read  as  follows: 

12.  The  embezzlement  or  criminal  malversation  of  public 
funds,  committed  within  the  jurisdiction  of  one  or  the  other 
party,  by  public  officers  or  depositaries. 

Paragraph  13,  of  the  same  article  is  amended  to  read  as 
follows : 

13.  Embezzlement  by  any  person  or  persons  hired,  salaried 
or  employed,  to  the  detriment  of  their  employers  or  principals, 
when  the  crime  or  offense  is  punishable  by  imprisonment  or 
other  corporal  punishment  by  the  laws  of  both  countries. 

Paragraph  1 4,  of  said  article,  is  amended  to  read  as  follows : 

14.  Kidnaping  of  minors  or  adults,  defined  to  be  the  abduc- 
tion or  detention  of  a  person  or  persons,  in  order  to  exact 
money  from  them  or  from  their  families,  or  for  any  other  un- 
lawful end. 

In  continuation  and  as  forming  a  part  of  said  article,  relat- 
ing to  crimes,  shall  be  added  the  following  paragraphs; 


EXTRADITION    TREATIES.  149 

15.  Obtaining  by  threats  of  injury  or  false  devices,  money, 
valuables,  or  other  personal  property,  and  the  purchase  of  the 
same  with  the  knowledge  that  they  have  been  so  obtained, 
when  the  crimes  or  offenses  are  punishable  by  imprisonment 
or  other  corporal  punishment  by  the  laws  of  both  countries. 

16.  Larceny,  defined  to  be  the  theft  of  effects,  personal 
property  or  money,  of  the  value  of  twenty-five  dollars  or  more. 

17.  Slave-trade,  according  to  the  laws  of  each  of  the  two 
countries,  respectively. 

18.  Complicity  in  any  of  the  crimes  or  offenses  enumerated 
in  the  convention  of  January  15,  1877,  as  well  as  in  these  ad- 
ditional articles,  provided  that  the  persons  charged  wTith  such 
complicity  be  subject  as  accessories  to  imprisonment  or  other 
corporal  punishment  by  the  laws  of  both  countries. 

The  following  provisions  were  also  added: 

When  the  fugitive  is  arrested  and  brought  before  the  ex- 
amining court,  if  it  shall  appear  that  the  warrant  for  his  arrest 
was  issued  upon  a  request  sent  by  telegraph,  the  judge  or  mag- 
istrate may  at  his  discretion  hold  the  accused  for  a  period  not 
exceeding  twenty-five  days,  that  legal  evidence  of  his  guilt 
may  be  furnished  and  laid  before  the  examining  court;  and  if  at 
the  end  of  twenty-five  days  such  evidence  is  not  produced,  the 
person  arrested  shall  be  released,  provided  that  the  examina- 
tion of  the  charges  preferred  against  the  accused  shall  not  be 
actually  going  on. 

In  every  case  of  request  for  extradition  under  the  treaty  of 
January  5,  1877,  and  of  these  additional  articles,  the  legal  offi- 
cers or  fiscal  ministry  of  the  country  where  the  proceedings 
are  had  shall  assist  the  officers  of  the  Government  demanding 
the  extradition,  before  the  respective  judges  and  magistrates, 
by  every  legal  means  within  their  or  its  power;  and  no  claim 
whatever  for  compensation  shall  be  made  against  the  Govern- 
ment demanding  extradition,  except  in  case  of  those  officers 


150  HOW   TO   PROCEED. 

who  are  paid  by  special  fees  for  their  services,  and  they  shall 
be  entitled  to  receive  from  the  Government  demanding  the 
surrender  the  customary  fees  for  the  services  performed  by 
them,  according  to  the  rule  or  law  of  compensation  for  such 
services  in  the  country  of  which  they  are  officers. 

All  the  provisions  of  the  aforesaid  convention  of  January 
5,  1877,  not  abrogated  by  this  supplementary  treaty,  apply  to 
these  articles  with  the  same  force  as  to  the  said  original  con- 
vention. 

XXXIII.      GRAND  DUCHY  OF  LUXEMBURG,  OCT.  29,   1 883. 

Crimes. — Persons  shall  be  delivered  up  who  shall  be  con- 
victed of  or  charged  with  any  of  the  following  crimes:  1. 
Murder,  including  parricide,  assassination,  poisoning  and  in- 
fanticide. 2.  Attempt  to  commit  murder.  3.  Rape,  or  attempt 
to  commit  rape.  4.  Bigamy.  5.  Abortion.  6.  Arson.  7. 
Piracy  or  mutiny  on  shipboard,  whenever  the  crew,  or  a  part 
thereof,  shall  have  taken  possession  of  the  vessel  by  fraud  or 
violence  against  the  commander.  8.  Burglary,  defined  to  be 
the  act  of  breaking  and  entering  by  night  into  the  house  of  an- 
other with  intent  to  commit  felony.  9.  Robbery,  defined  to  be 
the  act  of  feloniously  and  forcibly  taking  from  the  person  of 
another  money  or  goods,  by  violence  or  putting  him  in  fear, 
and  the  corresponding  crimes  punished  by  the  laws  of  Luxem- 
burg under  the  description  of  thefts  committed  in  an  inhabited 
house  by  night,  and  by  breaking  in  by  climbing  or  forcibly, 
and  thefts  committed  with  violence  or  by  means  of  threats. 
10.  Forgery,  by  which  is  understood  the  utterance  of  forged 
paper,  and  also  the  counterfeiting  of  public,  sovereign  or  gov- 
ernmental acts.  1 1 .  Fabrication  or  circulation  of  counterfeit 
money,  either  coin  or  paper,  or  of  counterfeit  public  bonds, 
coupons  of  the  public  debt,  bank  notes,  obligations,  or,  in 
general,  any  thing  being  a  title  or  instrument  of  credit;  the 
counterfeiting  of  seals  and  dies,  impressions,  stamps  and  marks 


EXTRADITION   TREATIES.  151 

of  State  and  public  administration,  and  the  utterance  thereof. 

12.  Embezzlement  of  public  moneys  committed  within  the 
jurisdiction  of  either  party  by  public  officers  or  depositaries. 

13.  Embezzlement  by  any  person  or  persons  hired  or  salaried, 
to  the  detriment  of  their  employers,  when  the  crime  is  subject 
to  punishment  by  the  laws  of  the  place  where  it  was  commit- 
ted. 14.  Willful  and  unlawful  destruction  or  obstruction  of 
railroads,  which  endangers  human  life. 

Reception  of  articles  obtained  by  means  of  one  of  the 
crimes  or  offenses  provided  for  by  the  present  convention. 

Extradition  may  also  be  granted  for  the  attempt  to  commit 
any  of  the  crimes  above  enumerated  when  such  attempt  is 
punishable  by  the  laws  of  both  contracting  parties. 

A  person  surrendered  under  this  convention  shall  not  be 
tried  or  punished  or  given  up  to  a  third  power  for  a  crime  or 
offense,  not  provided  for  by  the  present  convention  and  com- 
mitted previously  to  his  extradition,  until  he  shalj  have  been 
allowed  one  month  to  leave  the  country  after  being  discharged 
or  one  month  after  suffering  his  penalty  or  being  pardoned. 

He  may  be  tried  or  punished  for  any  crime  or  offense  pro- 
vided for  by  this  convention  committed  previous  to  his  extra- 
dition, other  than  that  for  which  he  was  extradited,  and  notice 
of  the  purpose  to  so  try  him,  with  specifications  of  the  offense 
charged,  shall  be  given  the  Government  which  surrendered 
him,  which  may  demand  the  same  papers  and  proofs  as  in  a 
case  of  ordinary  extradition  under  this  treaty. 

The  consent  of  that  Government  shall  likewise  be  required 
for  the  extradition  of  the  accused  to  a  third  country  unless  the 
accused  shill  ask  of  his  own  accord  to  be  tried  or  to  undergo 
his  punishment,  or  unless  he  shall  not  have  left  the  country 
within  the  space  of  time  specified  above. 

Political  offenses  are  exempt. 

A    person    extradited    for  any  of  the  enumerated  offenses 


152  HOW    TO    PROCEED. 

shall  not  be  subsequently  tried  or  punished  for  any  political 
offense  committed  previously  to  his  extradition,  or  on  account 
of  any  act  connected  with  such  political  offense,  unless  he  has 
been  at  liberty  to  leave  the  country  for  one  month  after  hav- 
ing been  tried,  and  if  convicted,  for  one  month  after  expiration 
of  sentence  or  pardon. 

An  attempt  against  the  life  of  the  head  of  a  foreign  Gov- 
ernment, or  against  that  of  any  member  of  his  family  when 
such  an  attempt  comprises  the  act  either  of  murder,  or  assas- 
sination, or  of  poisoning,  shall  not  be  considered  a  political  of- 
fense or  an  act  connected  with  such  an  offense. 

Citizens  are  not  delivered  up  by  either  party. 

New  Crime. — Same  as  Belgium. 

Requisitio7i  shall  be  made  through  the  respective  diplomatic 
channels,  or,  in  their  absence,  by  the  superior  consular  officers. 

If  the  fugitive  is  a  convict,  a  copy  of  the  sentence  of  the 
court  in  which  he  was  convicted,  authenticated  under  its  seal, 
and  attestation  of  the  official  character  of  the  judge  by  the 
proper  executive  authority,  and  of  the  latter  by  the  Minister 
or  Consul  of  the  United  States  or  of  Luxemburg,  must  accom- 
pany the  requisition.  If  the  fugitive  is  merely  accused  of  crime, 
a  duly  authenticated  copy  of  the  warrant  for  his  arrest,  and  of 
the  depositions  upon  which  such  warrant  was  issued,  must  ac- 
company the  requisition. 

The  executives  issue  the  warrants  for  apprehension  and  if 
upon  examination  before  the  proper  tribunal  the  case  is  found 
to  be  within  the  provisions  of  the  treaty  the  surrender  will  be 
made. 

If  proceedings  have  been  barred  in  the  country  where  crime 
was  committed  by  lapse  of  time  or  for  other  cause,  extradition 
will  not  be  granted.  Articles  found  in  possession  of  accused 
party  and  obtained  through  commissions  of  crime  charged,  or 
that  may  be  used  as  evidence  to  prove  said  crime,  shall  be 


EXTRADITION   TREATIES.  153 

seized  and  surrendered  with  his  person;  but  the  rights  of  third 
persons  interested  in  them  shall  be  respected. 

Treaty  took  effect  thirty  days  after  ratification  and  con- 
tinues until  terminated  by  either  party  giving  to  the  other  six 
months'  notice  of  a  desire  to  do  so. 

XXXIV.      JAPAN,    APRIL    29,    1 886. 

Crimes. — Persons  accused  or  convicted  of  one  of  the  crimes  or 
offenses  named  below,  committed  in  the  jurisdiction  of  one  and 
found  in  the  jurisdiction  of  the  other,  shall  be  delivered  up.  1. 
Murder,  and  assault  with  intent  to  commit  murder.  2.  Counter- 
feiting or  altering  money,  or  uttering  or  bringing  into  circula- 
tion counterfeit  or  altered  money;  counterfeiting  certificates  or 
coupons  of  public  indebtedness,  bank  notes,  or  other  instru- 
ments of  public  credit  of  either  of  the  parties,  and  the  utter- 
ance or  circulation  of  the,  same.  3.  Forgery,  or  altering  and 
uttering  what  is  forged  or  altered.  4.  Embezzlement  or  crim- 
inal malversation  of  the  public  funds,  committed  within  the 
jurisdiction  of  either  party,  by  public  officers  or  depositaries. 
5.  Robbery.  6.  Burglary,  defined  to  be  the  breaking  and  en- 
tering by  night  time  into  the  house  of  another  person  with  the 
intent  to  commit  a  felony  therein;  and  the  act  of  breaking  and 
entering  the  house  of  another,  whether  in  the  day  or  night- 
time, with  the  intent  to  commit  a  felony  therein.  7.  The  act 
of  entering,  or  of  breaking  and  entering,  the  offices  of  the 
government  and  public  authorities,  or  the  offices  of  the  banks, 
banking-houses,  savings-banks,  trust  companies,  insurance  or 
other  companies,  with  intent  to  commit  a  felony  therein.  8. 
Perjury.  9.  Rape.  10.  Arson.  11.  Piracy  by  the  law  of  nations. 
12.  Murder,  assault  with  intent  to  kill,  and  manslaughter, 
committed  on  the  high  seas,  on  board  a  ship  bearing  the  flag 
of  the  demanding  country.  13.  Malicious  destruction  of,  or 
attempt  to  destroy,  railways,  trains,  vessels,  bridges,  dwellings, 
public  edifices,  or  other  buildings,  when  the  act  endangers 
human  life. 


154  HOW   TO    PROCEED. 

If  the  person  demanded  be  held  for  trial  in  the  country  on 
which  the  demand  is  made,  the  latter  may,  at  its  option,  deliv- 
er him  up  or  proceed  with  trial,  but  unless  the  said  trial  shall 
be  for  the  same  crime  for  which  he  is  demanded,  the  delay 
shall  not  prevent  ultimate  extradition. 

Political  offenses  are  exempt. 

Persons  surrendered  for  an  extraditable  crime  shall  not 
then  be  tried  or  punished  for  a  political  offense  committed  pri- 
or to  his  extradition,  nor  for  any  offense  other  than  that  in  re 
spect  of  which  the  extradition  is  granted. 

Requisition  is  made  through  the  diplomatic  agents,  or  in 
their  absence,  by  superior  consular  officers. 

If  the  fugitive  is  a  convict,  a  copy  of  the  sentence  of  the 
court  in  which  he  was  convicted,  authenticated  under  its  seal, 
and  an  attestation  of  the  official  character  of  the  judge  by  the 
proper  executive  authority,  and  of  the  latter  by  the  Minister  or 
Consul  of  the  United  States  or  of  Japan,  shall  accompany  the 
requisition.  If  he  is  merely  charged  with  crime,  a  duly  au- 
thenticated copy  of  the  warrant  of  arrest  and  of  the  depositions 
upon  which  such  warrant  was  issued,  must  accompany  the 
requisition. 

On  being  informed  by  telegraph  or  other  written  commu- 
nication through  a  diplomatic  channel,  that  a  lawful  warrant 
has  been  issued  by  competent  authority  upon  probable  cause 
for  the  arrest  of  a  fugitive  criminal  charged  with  any  of  the 
above  enumerated  crimes,  and  on  being  assured  that  a  request 
for  the  surrender  of  such  criminal  is  about  to  be  made,  each 
Government  will  endeavor  to  procure  so  far  as  it  lawfully  may 
the  provisional  arrest  of  such  criminal  and  keep  him  in  safe 
custody  for  a  reasonable  time,  not  to  exceed  two  months,  to 
await  the  production  of  the  documents  upon  which  the  claim 
for  extradition  is  founded. 

Neither  party  delivers  up  its  own  citizens. 


EXTRADITION   TREATIES.  1 55 

Treaty  went  into  force  sixty  days  after  ratification  and  may 
be  terminated  at  any  time  by  either  party  giving  to  the  other 
six  months'  notice  of  a  desire  to  do  so. 

XXXV.      NORTH  GERMAN  CONFEDERATION,  FEB.  22,   1 868. 

This  treaty  is  denominated  a  "Convention  relative  'to 
Naturalization,"  but  the  third  Article  refers  to  extradition  and 
is  as  follows: 

"The  convention  for  the  mutual  delivery  of  criminals,  fugi- 
tives from  justice,  in  certain  cases,  concluded  between  the 
United  States  on  the  one  part  and  Prussia  and  other  States  of 
Germany  on  the  other  part,  the  sixteenth  day  of  June,  one 
thousand  eight  hundred  and  fifty-two,  is  hereby  extended  to  all 
the  States  of  the  North  German  Confederation." 

This  completes  the  list  of  extradition  treaties  now  in  force 
between  the  United  States  and  foreign  countries.  It  will  be 
seen  that  almost  the  whole  civilized  world  is  covered  by  these 
treaties.  It  will  be  observed  that  these  conventions  grow  in 
the  number  of  crimes  made  extraditable,  and  in  the  elaboration 
of  details  as  they  proceed  in  point  of  time.  The  uniformity  of 
expression  and  stipulation  also  shows  how  strongly  this  Gov- 
ernment has  impressed  its  personality  on  all  these  compacts, 
and  how  potent  has  been  its  influence  upon  representatives  of 
foreign  Governments  in  their  negotiation. 

UNITED   STATES   EXTRADITION    LAWS. 

The  United  States  Congress  has  enacted  laws  supplement- 
ing the  existing  extradition  treaties,  and  providing  for  carrying 
out  their  provisions.  This  legislation  will  be  found  in  the  Re- 
vised Statutes  of  the  United  States  from  Section  5270  to  5280 
inclusive,  and  a  special  act  of  Aug.  3,  1882  (22  U.  S.  Stat,  at 
Large,  215).  This  legislation  covers  International  and  Inter- 
State  extradition  as  well  as  that  of  deserting  seamen. 

The  laws  relating  to  Inter-State  extradition  have  already 
been  given  in  the  proper  place.     The  laws  relating  to  Interna- 


156  HOW   TO    PROCEED. 

tional  extradition  are  divided  into  two  classes:  1.  Those  relat- 
ing to  such  extradition  from  the  United  States.  2.  Those  re- 
lating to  the  extradition  to  the  United  States.  We  will  only 
take  space  to  briefly  summarize  these  laws.  Those  desiring  to 
give  them  a  careful  study  will  find  the  full  text  in  the  Revised 
Statutes  of  the  United  States. 

EXTRADITION    FROM   THE   UNITED   STATES. 

i .  Examining  Magistrates,  Sec.  5270. — If  there  is  an  extra- 
dition treaty,  any  justice  of  the  Supreme  Court,  circuit  judge, 
district  judge,  commissioner  authorized  by  any  court  of  the 
United  States,  or  a  judge  of  a  court  of  record  of  general  juris- 
diction of  any  State,  may,  upon  complaint,  made  under  oath, 
charging  any  person  found  within  the  limits  of  any  State,  dis- 
trict or  territory, with  having  committed  within  the  jurisdiction 
of  any  such  foreign  Government  any  of  the  crimes  provided 
for  by  such  treaty,  issue,  his  warrant  for  the  apprehension  of 
the  person  so  charged,  that  he  may  be  brought  before  such 
justice,  judge,  etc.,  to  hear  the  evidence  of  criminality.  If  he 
deems  the  evidence  sufficient  according  to  the  provisions  of 
the  treaty,  he  shall  certify  the  same,  with  a  copy  of  the  evi- 
dence taken,  to  the  Secretary  of  State,  that  a  warrant  may  is- 
sue upon  the  requisition  of  the  proper  authorities  of  such  for- 
eign Government  for  the  surrender  of  such  person  according 
to  the  treaty;  and  he  shall  issue  his  warrant  for  the  commit- 
ment of  the  person  to  the  proper  jail,  to  remain  until  such  sur- 
render shall  be  made. 

2.  Documentary  Proof,  Sec.  52JI.  In  the  hearing  provided 
for  above,  any  depositions,  warrants  or  other  papers  offered  in 
evidence,  shall  be  admitted  if  they  shall  be  properly  and  legally 
authenticated  so  as  to  entitle  them  to  be  received  as  evidence 
of  the  criminality  of  the  person  so  apprehended,  by  the  tri- 
bunals of  the  foreign  country  from  which  the  accused  shall 
have  escaped,  and  copies  of  such  documents  shall,  if  authen- 


EXTRADITION    TREATIES.  157 

ticated  according  to  the  laws  of  the  country  making  the  de- 
mand, be  received  as  evidence ;  the  certificate  of  the  principal 
diplomatic  or  consular  officer  of  the  United  States,  resident  in 
such  foreign  country,  shall  be  proof  that  the  authentication  is 
in  proper  form. 

3.  Executive  Delivery,  Sec.  5272.  The  Secretary  of  State 
makes  the  delivery  to  such  person  as  shall  be  authorized  by 
the  foreign  Government  to  receive  him;  and  the  agent  shall 
hold  him  in  custody  and  take  him  to  the  territory  of  such  for- 
eign Government.  If  the  prisoner  escape,  it  shall  be  lawful  to 
retake  him  in  the  same  manner,  as  any  person  accused  of  any 
crime  against  the  laws  in  force  in  that  part  of  the  United  States 
to  which  'he  shall  escape,  may  be  retaken  on  an  escape. 

4.  Limitation  of  Time,  Sec.  5273.  Any  person  committed 
as  before  provided,  to  await  extradition  papers,  may  be  dis- 
charged after  two  calendar  months  over  and  above  the  time  ac- 
tually required  to  convey  the  prisoner  from  the  jail,  by  the 
readiest  way,  out  of  the  United  States.  The  prisoner  must 
make  application  to  any  State  or  United  States  judge  and  sub- 
mit proof  that  reasonable  notice  has  been  given  the  Secretary 
of  State  that  such  application  would  be  made.  If  sufficient 
cause  is  not  shown  to  such  judge  why  such  discharge  should 
not  be  made  he  may  discharge  him  from  custody. 

5.  Application  of  the  Laws,  Sec.  5274.  These  laws  continue 
in  force  during  the  existence  of  any  treaty  of  extradition  with 
any  foreign  Government  and  no  longer. 

EXTRADITION   TO   THE   UNITED   STATES. 

6.  Protection  of  the  Fugitive,  Sec.  5275.  When  an  agent  of 
the  United  States  receives  a  fugitive  from  a  foreign  Govern- 
ment under  a  treaty,  the  President  shall  have  power  to  provide 
for  his  transportation,  safe-keeping  and  security  against  lawless 
violence,  until  the  final  conclusion  of  his  trial  and  for  a  rea- 
sonable time  thereafter,  and  may  employ  such  portion  of  the 


158  HOW   TO    PROCEED. 

land  or  naval  forces  of  the  United  States,  or  of  the  militia,   as 
may  be  necessary  for  such  purpose. 

7.  Powers  of  the  Agent,  Sec.  5276.  The  duly  appointed 
agent  of  the  United  States  has  all  the  powers  of  a  Marshal  of 
the  United  States. 

8.  Penalty  for  Interference,  Sec.  52JJ.  Any  person  who 
knowingly  and  willfully  obstructs,  resists  or  opposes  such 
agent  in  the  execution  of  his  duties,  or  who  rescues  or  at- 
tempts to  rescue  such  prisoner,  whether  in  the  custody  of  the 
agent  or  of  any  officer  or  person  to  whom  his  custody  has  law- 
fully been  committed,  shall  be  punishable  by  a  fine  of  not 
more  than  one  thousand  dollars,  and  by  imprisonment  for  not 
more  than  one  year. 

9.  Act  of  August  3,  1882.  This  act  supplements  the  fore- 
going provisions  of  the  Revised  Statutes  and  provides  as 
follows : 

(1.)  Extradition  Practice.  (Sec.  1.)  That  all  hearings  in 
cases  of  extradition  under  treaty  stipulation  shall  be  held  on 
land,  publicly,  and  in  a  room  or  office  easily  accessible  to  the 
public. 

(2.)  Commissioners'  Fees.  (Sec.  2.)  The  following  fees  are 
allowed  and  no  other : 

(a.)  For  administering  an  oath,  ten  cents. 

(6.)  For  taking  an  acknowledgment,  twenty-five  cents. 

(c.~)  For  taking  and  certifying  depositions  to  file,  twenty 
cents  for  each  folio. 

(d.)  For  each  copy  of  the  same,  furnished  to  a  party  on  re- 
quest, ten  cents  for  each  folio. 

(<?.)  For  issuing  any  warrant  or  writ,  and  for  any  other  ser- 
vice, the  same  compensation  as  is  alloWed  clerks  for  like  services. 

(/.)  For  issuing  any  warrant  under  the  treaty  of  August 
9,  1842,  with  Great  Britain,  against  any  person  charged  with 
any  crime  set  forth  in  said  treaty,  two  dollars. 


EXTRADITION    TREATIES.  1 59 

(g.)  For  issuing  any  warrant  under  the  treaty  with  France, 
November  9,  1843,  two  dollars. 

(k.)  For  hearing  and  deciding  the  case  of  any  person 
charged  with  any  crime  or  offense,  five  dollars  a  day  for  the 
time  necessarily  employed. 

(3)  Subpoena  of  Witnesses.  (Sec.  3.)  If  upon  the  hearing 
the  person  charged  shall  make  affidavit  that  there  are  witness- 
es whose  evidence  is  material  to  his  defense,  that  he  can  not 
safely  go  into  trial  without  them,  stating  what  he  expects  to 
prove  by  each,  and  that  he  is  not  possessed  of  sufficient  means, 
and  is  actually  unable  to  pay  the  fees  of  such  witnesses,  the 
judge  may  order  them  subpoenaed  and  the  cost  incurred  by  so 
doing  shall  be  paid  in  the  same  manner  that  similar  fees  are 
paid  in  the  case  of  witnesses  for  the  United  States. 

(4.)  Witness  Fees.  (Sec.  4.)  All  costs  of  every  nature  at- 
tending extradition,  including  the  commissioner's  fees,  shall  be 
certified  by  the  judge  or  commissioner  to  the  Secretary  of 
State  of  the  United  States  and  shall  be  paid  out  of  the  appro- 
priation to  defray  the  expenses  of  the  judiciary ;  and  the  Secre- 
tary of  State  shall  cause  the  amount  of  said  fees  and  costs  to  be 
reimbursed  to  the  United  States  by  the  foreign  Government 
demanding  the  extradition. 

(5.)  Evidence.  (Sec.  5.)  Depositions,  warrants  and  other 
papers,  or  copies  thereof,  shall  be  admitted  as  evidence,  on  the 
hearing  if  they  are  authenticated  in  such  manner  as  to  entitle 
them  to  be  received  for  similar  purposes  in  the  tribunals  of  the 
foreign  country  from  which  the  accused  escaped,  and  the  cer- 
tificate of  the  principal  diplomatic  or  consular  officer  of  the 
United  States,  resident  in  such  foreign  country,  shall  be  proof 
that  such  documents  or  copies  are  authenticated  in  the  manner 
required  by  this  act. 

Section  5280  provides  for  the  extradition  of  deserting  sea- 
men. 


l6o  HOW   TO    PROCEED. 

Extradition  from  Canada  to  the  United  States  is  made  un- 
der the  treaty  of  1842  with  Great  Britain.  A  new  treaty  is  now 
in  progress  of  negotiation  which  will  largely  increase  the  num- 
ber of  offenses  extraditable  between  this  country  and  Canada, 
and  that  country  will  then  no  longer  be  the  common  refuge 
for  swindlers  and  embezzlers  from  the  States,  a  change  which 
ought  to  be  agreeable  and  profitable  to  both  countries. 
THE  ENGLISH  EXTRADITION  ACT,   1870. 

Perhaps  four-fifths  of  the  extradition  cases  that  occur  arise 
under  the  treaty  of  1842  with  Great  Britain.  As  it  frequently 
happens  that  criminals  flee  from  this  country  to  England  or 
some  of  her  dependencies  it  is  important  to  know  the  formali- 
ties of  the  English  law  that  must  be  complied  with.  For  the 
information  of  those  who  may  have  to  deal  with  such  cases  we 
give  the  principal  points  of  that  law : 

Section  3.  The  following  restrictions  shall  be  observed 
with  respect  to  the  surrender  of  fugitive  criminals : 

(1.)  Fugitives  charged  with  political  offenses  will  not  be 
surrendered,  or  if  the  fugitive  prove  to  the  satisfaction  of  the 
judge  on  the  hearing,  or  to  the  Secretary  of  State,  that  the 
requisition  for  his  surrender  has  in  fact  been  made  with  a  view 
to  try  or  punish  him  for  such  offense,  he  will  not  be  surrend- 
ered. 

(2.)  .  A  fugitive  criminal  shall  not  be  delivered  to  a  foreign 
State  unless  provision  is  made  by  the  law  of  that  State,  or  by 
arrangement,  that  he  shall  not  be  detained  or  tried  in  that 
State  for  any  offense  committed  prior  to  his  surrender,  other 
than  the  extradition  crime,  until  he  has  been  restored  or  had 
an  opportunity  of  returning  to  Her  Majesty's  dominions. 

(3.)  A  fugitive  who  has  been  accused  of  some  crime  in 
Her  Majesty's  dominions  other  than  the  crime  for  which  his 
extradition  is  asked,  or  is  undergoing  sentence  under  convic- 
tion, shall  not  be  surrendered  until  he  is  discharged. 


EXTRADITION    TREATIES.  if) I 

(4.)  A  fugitive  criminal  shall  not  be  surrendered  until  the 
expiration  of  fifteen  days  from  the  date  of  his  being  committed 
to  prison  to  await  his  surrender. 

Section  7.  A  requisition  shall  be  made  to  a  Secretary  of 
State  by  a  diplomatic  representative  of  the  foreign  State.  A 
Secretary  of  State  may  order  a  police  magistrate  to  issue  a 
warrant  for  the  arrest  of  the  fugitive,  or  if  he  think  the  offense 
is  of  a  political  character  he  may  refuse,  and  may  at  any  time 
order  the  person  accused  or  convicted  of  such  offense  to  be 
discharged  from  custody. 

Section  10.  The  evidence  produced  of  the  fugitive's  guilt 
must  be  as  much  as  would  suffice  to  justify  his  commitment 
for  trial  if  the  crime  of  which  he  is  accused  had  been  committed 
in  England,  otherwise  the  magistrate  shall  discharge  him. 

Section  14.  Depositions  taken  in  a  foreign  country,  and 
copies  of  the  same,  or  judicial  documents  stating  the  fact  of 
conviction  may,  if  duly  authenticated,  be  received  in  evidence. 

Section  15.  These  depositions  and  other  documents  shall 
be  deemed  duly  authenticated,  if  authenticated  in  manner  pro- 
vided for  the  time  being  by  law,  or  as  follows:  (1.)  If  the 
warrant  purports  to  be  signed  by  a  judge,  magistrate,  or  officer 
of  the  foreign  State  where  the  same  was  issued;  (2.)  If  the 
depositions  or  copies  thereof  purport  to  be  certified  under  the 
hand  of  a  judge,  magistrate,  or  officer  of  the  foreign  State 
where  the  same  were  taken,  to  be  the  original  depositions  or 
statements  or  true  copies  thereof,  as  the  Case  may  require;  (3.) 
If  the  judicial  document  stating  the  fact  of  conviction  purports 
to  be  certified  by  a  judge  where  the  conviction  took  place;  and 
in  every  case  the  warrants,  depositions,  statements,  copies,  cer- 
tificates, and  judicial  documents  (as  the  case  may  be)  are  au- 
thenticated by  the  oath  of  some  witness  or  by  being  sealed 
with  the  official  seal  of  the  Minister  of  Justice ;  and  all  courts 
of  justice  shall  take  judicial  notice  of  such  official  seal,  and 


1 62  HOW  TO    PROCEED. 

shall  admit  the  documents  authenticated  by  it  to  be  received 
in  evidence  without  further  proof. 

Section  17.  This  act  extends  to  every  British  possession, 
with  the  following  modifications:  (1.)  The  requisition  for  a 
person  in  a  British  possession  may  be  made  to  the  Governor 
thereof  by  any  person  recognized  by  him  as  a  consul-general, 
consul,  or  vice-consul;  (2.)  No  warrant  of  a  Secretary  of  State 
shall  in  this  case  be  required,  the  Governor  being  empowered 
to  perform  all  acts  vested  in  or  authorized  to  be  done  by  the 
magistrate  and  Secretary  of  State  or  either  of  them;  (3.)  Any 
prison  in  the  British  possession  may  be  substituted  for  a  prison 
in  Middlesex;  (4.)  A  judge  of  any  court  in  the  British  posses- 
sion, exercising  the  like  powers  as  the  Court  of  Queen's  Bench 
in  England,  may  exercise  the  power  of  discharging  the  crimi- 
nal when  not  conveyed  within  two  months  out  of  the  British 
possession. 

Section  18.  If  the  British  possession  by  its  legislature  has 
passed  any  law  or  ordinance  either  before  or  after  the  passage 
of  this  act,  providing  for  the  surrender  of  fugitives,  Her  Majesty 
may  by  the  Order  in  Council  suspend  the  operation  of  this  act 
or  any  part  thereof  within  such  foreign  possession  so  long  as 
said  law  or  ordinance  remains  in  force  and  no  longer;  or  direct 
that  such  law  or  ordinance,  or  any  part  thereof,  shall  have  ef- 
fect in  such  possession,  with  or  without  modifications,  as  if  it 
were  a  part  of  this  act. 

Section  19.  When  a  fugitive  is  extradited  to  England  from 
a  foreign  country  he  shall  not,  until  he  has  been  restored  or 
had  opportunity  to  return  to  such  foreign  State,  be  tried  or 
triable  for  any  offense  committed  prior  to  the  surrender  in  any 
of  Her  Majesty's  dominions,  other  than  such  crimes  as  may  be 
proved  by  the  facts  on  which  the  surrender  is  grounded. 

Section  24.  The  testimony  of  any  witness  ma)'  be  obtained 
in  relation  to  any  criminal  matter  pending  in  any  foreign 


EXTRADITION   TREATIES.  1 63 

tribunal  in  the  same  manner  as  it  is  obtained  in  civil  matters, 
as  provided  by  law. 

This  brings  to  a  close  our  remarks  upon  the  subject  of  ex- 
tradition. The  subject,  in  bot^uiter-State  and  international 
features,  is  one  but  illy  understood  even  by  a  large  majority  of 
the  practitioners  at  the  bar,  and  we  judge  not  at  all  by  the 
people  at  large.  Still  it  is  a  subject  of  growing  importance, 
and  one  which  will  demand  constantly  increasing  attention  and 
study  as  the  facilities  for  foreign  travel  improve.  If  we  have 
been  able  to  shed  any  light  upon  the  subject  in  these  few 
pages,  or  to  point  out  the  way  to  any  benighted  officer,  detec- 
tive or  agent,  it  will  be  a  source  of  gratification  to  us  and  some 
assurance  that  we  have  not  written  in  vain. 


CHAPTER  V. 

COUNTERFEITING. 

ONE  of  the  most  extensively  followed  branches  of  crime 
is  that  of  counterfeiting,  embracing  both  the  coin  and 
paper  currency  of  the  country.  It  is  necessarily  car- 
ried on  with  great  secrecy,  as  the  Secret  Service  Offi- 
cers of  the  Government  are  extremely  vigilant  and  alert,  and 
with  their  large  experience  and  keen  scent  for  crime,  frequent- 
ly follow  a  very  slight  clew  to  its  legitimate  source  with  as 
much  precision  and  confidence  as  a  hound  would  scent  the  fox. 
We  shall  not  undertake  to  tell  in  this  work  how  to  detect 
and  capture  counterfeiters,  but  we  will  give  some  information 
in  regard  to  detecting  counterfeit  money  that  will  be  of  vast 
value  and  importance  to  every  merchant,  business  man  and 
farmer  in  the  country.  We  will  give  descriptions  of  all  the 
principal  counterfeit  National  bank  notes  now  in  circulation, 
also  counterfeit  United  States  notes,  so  that  by  a  little  study, 
and  the  application  of  a  few  principles,  no  one  need  ever  be 
defrauded  or  imposed  upon  with  counterfeit  money. 

NATIONAL    BANK    NOTES. 

National  bank  notes  are  divided  into  three  classes:  i.  The 
old  series,  bearing  the  small  star-pointed  seal  and  signed  by  F. 
E.  Spinner,  as  Treasurer.  2.  The  series  of  1875  with  a  scal- 
loped seal,  signed  by  John  C.  New,  A.  U.  Wyman  or  Jas.  Gil- 
fillan,  as  Treasurer.  3.  The  series  of  1882,  with  large  choco- 
late colored  seal  and  signed  by  Jas.  Gilfillan  or  A.  U.  Wyman, 
as  Treasurer. 

The  old  series  with  pointed  seal  are  all  printed  on  plain  bank 
note  paper.     The  series  of  1875  and  1882  are  printed  on  fibre 

164 


COUNTERFEITING.  1 65 

paper.  The  charter  number  is  printed  in  large  figures  on  each 
end  of  the  note  in  the  series  of  1875,  and  in  the  series  of  1882 
it  is  printed  in  large  figures  on  the  face  of  the  note  and  also 
in  small  figures  around  the  face  of  the  note;  on  the  back  of 
the  '82  series  the  charter  number  is  printed  in  large  figures  in 
green  panel  in  center  of  note.  All  notes  have  a  check  letter, 
either  A,  B,  C,  or  D.  This  letter  is  printed  in  two  places  on 
the  note,  at  top  and  bottom,  and  at  diagonally  opposite  corners. 
A  few  banks  have  received  notes  with  check  letters  E,  F,  G, 
H,  but  none  of  these  have  been  counterfeited.  The  following 
rules  then,  if  followed,  will  facilitate  the  work  of  detecting 
counterfeit  National  bank  notes: 

1.  All  National  bank  notes  bearing  check  letters  E,  F,  G, 
or  H,  are  good. 

2.  All  National  bank  notes  signed  by  a  different  Register 
and  Treasurer  from  those  in  the  following  list  are  good. 

3.  All  National  bank  notes  signed  by  the  same  Register  and 
Treasurer  as  those  in  the  following  list  are  good,  provided  the 
check  letter  is  different. 

4.  All  National  bank  notes  issued  by  banks  not  found  in 
the  following  list  are  good. 

If  a  note  is  found  bearing  the  same  signatures  of  Register 
and  Treasurer,  and  the  same  check  letter  and  issued  by  the 
same  bank  as  one  in  the  following  list  then  it  may  or  may  not 
be  counterfeit,  and  to  aid  in  determining  that  fact  is  the  object 
of  the  insertion  of  these  few  pages. 

One  experienced  in  handling  money  is  usually  attracted  to 
a  counterfeit  by  its  general  appearance,  or  by  its  "feel"  as  it 
passes  through  his  hands.  The  only  way  to  learn  this  is  to 
study  good  money  and  compare  it  with  bad.  The  paper  used 
by  the  Government  has  never  been  exactly  imitated,  although 
in  recent  years  some  excellent  attempts  have  been  made.  The 
ink  used  by  the  Government  is  manufactured  by  a  secret  pro- 


1 66  HOW   TO    PROCEED. 

cess  and  has  a  peculiar  gloss  which  has  never  been  success- 
fully imitated.  This  is  especially  noticeable  in  the  number  of 
the  note,  which,  when  the  bill  is  good,  shows  its  peculiar 
glistening  appearance  until  the  note  is  worn  out. 

Notes  counterfeited  by  the  photographic  process  are  easily 
detected,  as  it  is  impossible  to  reproduce  the  original  colors  of 
the  notes.  The  coloring  must  be  done  by  hand  and  it  results 
in  a  bungling  appearance  to  the  note  which  is  observable  at 
once.  In  this  class  of  work  the  numbers  can  not  be  relied 
upon  as  a  means  of  detection. 

ONES. 

BOSTON,  MASS.  A.— Series  of  1875.  National  Eagle. 

J.  Allison,  Register.         Photographic.     A.  U.  Wyman,  Treasurer. 

Signed  R.  S.  Covell,  President,  Wm.  G.  Brooks,  Cashier; 
Treasury  No.  211,944,  Bank  No.  3,640. 

TWOS. 

KINDERHOOK,  N.  Y.        A.— Old  Series.  National  Union. 

S.  B.  Colby,  Register.  F.  E.  Spinner,  Treasurer. 

In  words  "  Will  pay  to  bearer  "  on  genuine  note,  the  W  be- 
gins with  flourish,  making  angle  with  first  line  of  the  W.     On 
counterfeit  the  W  begins  with  an  oval  flourish. 
LINDERPARK,  N.  Y.  A.  National  Union. 

Entirely  fraudulent.     There  never  was  any  such  bank. 

NEWPORT,  R.  I.  A.— Old  Series.      National  Bank  op  R.  I. 

S.  B.  Colby,  Register.  F.  E.  Spinner,  Treasurer. 

Coarsly  engraved ;  seal  and  numbers  bad.  Signed  W.  A. 
Clark,  President,  J.  P.  Peckham,  Cashier. 

NEW  YORK,  N.  Y.  A.— Old  Series.  Ninth  National. 

S.  B.  Colby,  Register.  F.  E.  Spinner,  Treasurer. 

Title  on  genuine  reads  "  The  Ninth  National  Bank  of  the 


COUNTERFEITING.  167 

City  of  New  York."     The  word  "  the  "  is  omitted  in  the  coun- 
terfeit, reading  "  of  City  of  New  York." 

NEW  YORK,  N.  Y.  A.— Old  Series.  Marine  National. 

S.  B.  Colby,  Register.  F.  E.  Spinner,  Treasurer. 

Title  on  genuine  reads  "Marine  National  Bank  of  the  City 
of  New  York."     On  counterfeit  the  word  "the"  is  omitted. 

NEW  YORK,  N.  Y.  A.— Old  Series.  Market  National. 

S.  B.  Colby,  Register.  F.  E.  Spinner,  Treasurer. 

Same  description  as  National  Union  Bank,   Kinderhook, 
N.  Y. 
NEW  YORK,  N.  Y.  A.— Old  Series.    St.  Nicholas  National. 

S.  B.  Colby.  Register.  F.  E.  Spinner,  Treasurer. 

Same  description  as  National  Union  Bank,  Kinderhook, 

N.  Y. 

PEEKSKILL,  N.  Y.  A.— Old  Series.    Westchester  Co.  Nat'l. 

S.  B.  Colby,  Register.  F.  E-  Spinner,  Treasurer. 

Same  description  as  National  Union  Bank,  Kinderhook, 
N.  Y. 

FIVES. 

AMSTERDAM,  N.  Y.  B.— Old  Series.    Manufacturers'  Nat'l. 

John  Allison,  Register.  F.  E.  Spinner,  Treasurer. 

Coarsely  engraved;  but  appearance  fair.  The  counterfeit 
bears  a  flourish  directly  under  the  letters  Trea  of  the  word 
Treasurer  and  over  the  printed  signature  of  Allison,  that  the 
genuine  does  not  have. 

AURORA,  ILL.  A.— Old  Series.  First  National. 

S.  B.  Colby,  Register.  F.  E.  Spinner.  Treasurer. 

All  notes  on  this  bank  signed  by  S.  B.  Colby  are  counter- 
feit. The  genuine  are  signed  by  L,.  E.  Chittenden  as  Reg- 
ister. 


1 68  HOW   TO   PROCEED. 

BOSTON,  MASS.  C— Series  of  1875.    Boyleston  National. 

John  Allison,  Register.  J  no.  C.  New,  Treasurer. 

Counterfeit  bears  signature  of  J.  T.  Bailey,  Pres't,  and  D. 
S.  Waterman,  Cashier.  A  very  poor  counterfeit;  done  by  the 
photographic  process. 

BOSTON,  MASS.  C— Series  of  1875.  Globe  National. 

John  Allison,  Register.  Jno.  C  New,  Treasurer. 

W.  B.  Stevens,  Pres't,  C.  B.  Sprague,  Cashier.  A  bad 
photographic  note,  green  on  back,  looking  smeary. 

BOSTON,  MASS.  B—  Series  of  1875.         Pacific  National. 

John  Allison,  Register.  Jas.  Gilfillan,  Treasurer. 

A  poor  photographic  note.  Bank  no  longer  in  existence 
and  very  few  genuine  notes  out. 

CANTON,  ILL'.  A— Old  Series.  First  National. 

S.  B.  Colby,  Register.  F.  E.  Spinner,  Treasurer. 

All  notes  on  this  bank  signed  by  S.  B.  Colby  are  counter- 
feit.    Genuine  signed  by  L/.  E.  Chittenden. 

CECIL,  ILL.  A.  First  National. 

No  such  bank  ever  existed. 

CHICAGO,  ILL.  A.— Old  Series.  First  National. 

S.  B.  Colby,  Register.  F.  E.  Spinner,  Treasurer. 

All  notes  signed  by  Colby  counterfeit. 

CHICAGO,  ILL.  A.— Old  Series.  Central,  National. 

S.  B.  Colby,  Register.  F.  E.  Spinner,  Treasurer. 

Same  as  First  National  of  Chicago. 

CHICAGO,  ILL.  A.— Old  Series.  German  National. 

S.  B.  Colby,  Register.  F.  E.  Spinner,  Treasurer. 

Same  as  First  National  of  Chicago. 

CHICAGO,  ILL.  A.— Old  Series.    Merchants'  National. 

S.  B.  Colby,  Register.  F.  E.  Spinner,  Treasurer. 


COUNTERFEITING.  1 69 

Made  from  same  plate  as  Traders'  National  Bank,  Chicago, 
described  below. 

CHICAGO,  ILL/.  A.— Old  Series.  Traders'  National. 

S.  B.  Colby,  Register.  F.  E.  Spinner,  Treasurer. 

The  infallible  rule  for  this  note  and  for  all  counterfeit  $5 
Illinois  notes  is  as  follows :  On  a  genuine  note  the  perpendicu- 
lar line  on  back  of  note  at  right  end,  when  extended,  strikes 
a  figure  5  in  the  margin ;  in  the  counterfeit  this  line  strikes  be- 
tween the  marginal  figures.  All  Illinois  $5  counterfeits  are 
printed  from  this  plate. 

CHICAGO,  ILL.  A.— Old  Series.  Union  National. 

S.  B.  Colby,  Register.  F.  E.  Spinner,  Treasurer. 

The  date  is  the  key.  Genuine  dated  Jan.  '14,  1865,  coun- 
terfeit May  10,  1865. 

DEDHAM,  MASS.  B.— Series  of  1875.       Dedham  National. 

John  Allison,  Register.  Jnq.  C.  New,  Treasurer. 

A  poor  photographic  counterfeit,  signed  by  Ezra  W.  Taft, 
Pres't,  L.  H.  Kingsbury,  Cashier.  The  green  tint  is  entirely 
omitted  at  top  of  back  where  words  "National  Currency"  are 
printed,  and  is  poorly  put  on  elsewhere. 

FALL  RIVER,  MASS.  C.-Series  of  1875.      Pocasset  National. 

John  Allison,  Register.  A.  U.  Wyman,  Treasurer. 

A  photographic  note,  Bank  No.  762,  Treasury  No.  B974,- 
157- 
GALENA,  ILL.  A.  First  National. 

Entirely  fraudulent.     There  never  was  any  such  bank. 

HANOVER,  PA.  D.— Old  Series.  First  National. 

L.  E.  Chittenden,  Register.  F.  E.  Spinner.  Treasurer. 

The  date  is  the  key.  Those  bearing  the  words  "Act 
approved  June  3,  1864,"  are  counterfeit.  Genuine  have  Feb. 
25,  1863. 


170  HOW  TO   PROCEED. 

JACKSON,  MICH.  D—  Old  Series.  People's  National. 

S.  B.  Colby,  Register.  F.  E.  Spinner,  Treasurer. 

A  poorly  executed  lithograph.  Bank  Note  Company's  im- 
print on  lower  border  is  very  bad. 

JEWETT  CITY,  CONN.  B— Old  Series.     Jewett  City  National. 

S.  B.  Colby,  Register.  F.  E.  Spinner,  Treasurer. 

Badly  done,  looking  like  a  wood-cut.  Bank  dead,  and  few 
genuine  notes  out. 

LEICESTER,  MASS.  C.-Series  of  1875.   Leicester  National. 

John  Allison,  Register.  Jno.  C.  New,  Treasurer. 

Poor  photographic  note,  easily  detected.  Treasury  No. 
1)700,578.     Bank  No.  2,203. 

MILWAUKEE,  WIS.  B—  Series  of  1882.  First  National. 

B.  K.  Bruce,  Register.  Jamks  Gilfillan,  Treasurer. 

A  rather  poor  photographic  counterfeit,  which  ought  not 
to  deceive.  Has  vignette  of  Garfield.  Bank  No.  269.  Treas- 
ury A347,i46.  Charter  No.  2,715.  Scalloped  seal,  pale  pink; 
border  on  back,  brown;  center  of  back,  light  olive;  lathe- work, 
slate  color  and  green. 

MONTPELIER,  VT.  A.— Series  of  1875.  Montpelier  National. 

John  Allison,  Register.  jNp.  C.  New,  Treasurer. 

A  photographic  note;  Bank  No.  1,166;  Treasury  No.  B137,- 
701.     Charter  No.  857. 
NEW  BEDFORD,  MASS.       B.— Series  of  1875.  First  National. 

Poor  photographic  counterfeit,  of  which  only  one  note  has 
ever  been  seen.     Treas.  No.  6796,654.     Bank  No.  261. 

NEW  BEDFORD,  MASS.       C— Old  Series.      Merchants'  National. 
S.  B.  Colby,  Register.  F.  E-  Spinner.  Treasurer. 

A  very  fine  and  dangerous  counterfeit.  The  thigh  of  Co- 
lumbus on  the  back  has  a  broken  or  clubbed  appearance,  while 
in  the  genuine  it  is  natural  and  perfect. 


COUNTERFEITING.  171 

NORTHAMPTON,  MASS.     C— Old  Series.  First  National. 

S.  B.  Colby,  Register.  F.  E.  Spinner,  Treasurer. 

All  notes  on  this  bank  signed  S.  B.  Colby,  Register,  are 
counterfeit. 

NORWALK,  CONN.  A.— Series  of  1882.    Cent.  Nat' l  Bank  of 

B.  K.  Bruce,  Register.  A.  U.  Wyman,  Treasurer. 

This  is  a  very  defective  counterfeit  and  should  not  deceive. 
The  paper  is  bad,  not  being  fibre  paper,  or  having  the  parallel 
colored  silk  threads.  The  charter  number  is  404  instead  of 
2342,  as  it  should  be.  It  is  printed  partly  from  type  and  part- 
ly from  wood-cut. 

PAWLING,  N.  Y.  A.— Old  Series.     The  National  Bank  of 

S.  B.  Colby,  Register.  F.  E.  Spinner,  Treasurer. 

Position  of  check  letter  A  in  upper  left  hand  corner  is  the 
key.  In  counterfeit  it  nearly  touches  the  yard-arm;  in  genu- 
ine it  is  midway  between  yard-arm  and  border  of  note. 

PAXTON,  ILL.  A.— Old  Series.  First  National. 

S.  B.  Colby,  Register.  F.  E.  Spinner,  Treasurer. 

All  notes  on  this  bank,  signed  by  S.  B.  Colby,  are  counter- 
feit. 

PERU.  ILL.  A— Old  Series.  First  National. 

S.  B.  Colby,  Register.  F.  E.  Spinner,  Treasurer. 

All  notes  on  this  bank,  signed  by  S.  B.  Colby,  are  counter- 
feit. 

ROME,  N.  Y.  B.— Old  Series.  Fort  Stanwix  National. 

S.  ByCoLBY,  Register.  F.  E-  Spinner,  Treasurer. 

Engraving  of  vignettes  is  coarse  and  shading  of  large  let- 
ters is  bad.     Quite  a  dangerous  counterfeit. 

SOUTHBRIDGE,  MASS.        B.— Series  of  1875.     Southbridge  Nat'l- 
John  Allison,  Register.  John  C.  New,  Treasurer. 


I J2  HOW  TO   PROCEED. 

A  photographic  counterfeit,  not  dangerous.  Bank  No.  409 ; 
Charter  No.  934;  Treasury  No.  532,804. 

ST  JOHNSBURY,  VT.  C— Series  of  1875.  First  National. 

John  Allison,  Register.  John  C.  New,  Treasurer. 

A  poorly  executed  photographic  counterfeit.  They  have 
appeared  in  several  different  numbers. 

TAMAQUA,  PA.  B—  Old  Series.  First  National. 

S.  B.  Colby,  Register.  F.  E.  Spinner,  Treasurer. 

Three  keys  to  this  note:  1.  Charter  No.,  which  is  1,219; 
all  notes  bearing  any  other  number  are  counterfeit.  2.  The 
word  owing  in  the  upper  right  of  back  is  spelled  owwz'g. 
3.  The  word  Thousand  in  lower  right  of  note  is  spelled 
Thousand. 

TROY,  N.  Y.  A —Old  Series.  National  State. 

John  Allison,  Register.  John  C.  New,  Treasurer. 

Notes  on  this  bank  with  old  series  seal  and  John  C.  Nevv's 
name  are  counterfeit.  Also  on  the  counterfeit,  the  word  Treas- 
ury under  the  Register's  name  is  printed  Treasury. 

VIRGINIA,  ILL.  A. — Old  Series.  Farmers'  National. 

S.  B.  Colby,  Register.  F.  E.  Spinner,  Treasurer. 

Counterfeits  are  dated  May   10,  1865.      Genuine  Sept.   1, 
1865. 
WESTFIELD,  MASS.        C.  &  0.— Old  Series.      Hampden  National. 

S.  B.  Colby,  Register.  F.  E.  Spinner.  Treasurer. 

The  expression  of  Columbus  is  not  good,  and  in  the  ship 
on  left  end  of  note  the  connection  between  the  upright  stan- 
dard and  the  rail  in  the  bulwark  is  omitted.  t 

TENS. 

ALBANY,  N.  Y.  A.— Old  Series.     Albany  City  National. 

S.  B.  Colby,  Register.  F.  E.  Spinner,  Treasurer. 

Lathe-work,  numbers  and  seal  all  bad. 


COUNTERFEITING.  173 

AUBURN,  N.  Y.  A.— Old  Series.     Auburn  City  National. 

S.  B.  Colby,  Register.  F.  E.  Spinner.  Treasurer. 

Lathe- work,  numbers  and  seal  all  bad. 

BUFFALO,  N.  Y.  A.— Old  Series.  Farmers'  &  Manuf.  Nat. 

S.  B.  Colby,  Register.  F.  E.  Spinner,  Treasurer. 

The  plate  for  this  note  was  changed  from  the  Farmers'  and 
Manufacturers'  National  Bank,  of  Poughkeepsie,  N.  Y.,  which 
see  below.     There  is  no  such  bank  at  Buffalo. 

CINCINNATI,  OHIO.  C— Series  of  1882.  Third  National. 

B.  K.  Bruce,  Register.  Jas.  Gilftllan,  Treasurer. 

A  very  bad  note,  on  stiff  and  greasy  paper,  without  fibre  or 
parallel  silk  threads.  Engraving  coarse.  At  upper  left  cor- 
ner, in  word  "printed,"  the  N  is  engraved  wrong  side  up. 

LAFAYETTE,  IND.  A.— Old  Series.        Lafayette  National. 

John  Allison,  Register.  F.  E.  Spinner,  Treasurer. 

Counterfeits  bear  Bank  No.  1,496,  Treasury  No.  165,167. 

LOCKPORT,  N.  Y.  A.— Old  Series.  First  National. 

S.  B.  Colby,  Register.  F.  E.  Spinner,  Treasurer. 

Counterfeits  are  signed  S.  B.  Colby,  Register. 

MUNCIE,  IND.  A— Old  Series.  Muncie  National. 

John  Allison,  Register.  F.  E.  Spinner,  Treasurer. 

Counterfeits  bear  Bank  No.  1,496,  Treasury  No.  165,167. 

NEWBURGH,  N.  Y.  A— Old  Series.         Highland  National. 

S.  B.  Colby,  Register.  F.  E.  Spinner,  Treasurer. 

Very  bad,  seal,  lathe-work  and  numbering  all  quite  defec- 
tive. 

NEW  YORK,  N.  Y.  A.— Old  Series.  First  National. 

S.  B.  Colby,  Register.  F.  E.  Spinner,  Treasurer. 

Counterfeits  are  signed  S.  B.  Colby. 


174  HOW   TO   PROCEED. 

NEW  YORK,  N.  Y.  A— Old  Series.  American  National. 

S.  B.  Colby,  Register.  F.  E-  Spinner,  Treasurer. 

Counterfeits  are  dated  July  i,  1865,  genuine  Jan.  26,  1865. 

NEW  YORK,  N.  Y.  A— Old  Series.  Croton  National. 

S.  B  Colby,  Register.  F.  E.  Spinner,  Treasurer. 

Bank  dead  and  few  genuine  notes  out. 

NEW  YORK,  N.  Y.  A.-Old  Series.  Marine  National 

S.  B.  Colby,  Register.  F.  E.  Spinner,  Treasurer. 

"  Marine  National  Bank  of  the  City  of  New  York"  is  the 
title  on  genuine;  in  counterfeits  the  words  "the  City  of '"  are 
left  out. 

NEW  YORK,  N.  Y.  A— Old  Series.  Market  National. 

S.  B.  Colby,  Register.  F.  E.  Spinner,  Treasurer. 

Counterfeits  bear  date  July  1,  1865;  genuine  May  10,  1865. 

NEW  YORK,  N.  Y.  A.— Old  Series.       Mechanics'  National. 

S.  B.  Colby,  Register.  F.  E.  Spinner,  Treasurer. 

"Mechanics'  National  Bank  of  the  City  of  New  York"  is 
title  on  genuine  notes;  on  counterfeits  the  word  the  is  omitted. 

NEW  YORK,  N.  Y.  A.— Old  Series.      Merchants'  Natio?<al. 

S.  B.  Colby,  Register.  F.  E.  Spinner,  Treasurer. 

Bank  officers'  signatures  are  printed  on  the  counterfeit; 
they  should  be  written. 

NEW  YORK,  N.  Y.  A.— Old  Series.  Nat.  Bank  of  Commerce. 

S.  B.  Colby,  Register.  F.  E.  Spinner,  Treasurer. 

Counterfeits  bear  date  July  1,  1865;  genuine  Jan.  19,   1865. 

NEW  YORK,  N.  Y.  A.— Old  Series.  Nat.  Bank  of  State  N.  Y. 

S.  B.  Colby,  Register.  F.  E.  Spinner,  Treasurer. 

Lathe-work,  seal  and  numbering  all  poor. 

NEW  YORK,  N.  Y.  A.— Old  Series.  Union  National- 

S.  B.  Colby,  Register.  F.  E.  Spinner,  Treasurer. 


COUNTERFEITING.  1 75 

Counterfeits  bear  date  July  i,  1865;  genuine  July  20,  1865. 

PHILADELPHIA,  PA.  B— Old  Series.  First  National. 

L.  E.  Chittenden,  Register.  F.  E.  Spinner,  Treasurer. 

Counterfeits  bear  date  Feb.  20,  1864;  genuine  Nov.  2,  1863. 

PHILADELPHIA,  PA.  B—  Old  Series.       ,         Third  National. 

L.  E.  Chittenden,  Register.  F.  E.  Spinner,  Treasurer. 

The  word  Currency  is  the  key;  as  found  in  the  upper  right 
hand  end  of  bill  in  counterfeit,  it  is  printed  Curreiiy. 

POUGHKEEPSIE,  N.  Y.       A.— Old  Series.  First  National. 

S.  B.  Colby,  Register.  F.  E.  Spinner,  Treasurer. 

Counterfeits  are  signed  S.  B.  Colby. 

POUGHKEEPSIE,  N.  Y.       A.— Old  Series.  City  National. 

S.  B.  Colby,  Register.  F.  E.  Spinner,  Treasurer. 

Numbers,  seal  and  lathe-work  all  defective. 

POUGHKEEPSIE,  N.  Y.       A.— Old  Series.  Farmers'  &  Manuf.  Nat. 
S.  B.  Colby,  Register.  F.  E.  Spinner,  Treasurer. 

The  letters  P  and  O  join  in  the  word  Poughkeepsie  in 
counterfeit;  in  genuine  they  do  not. 

RED  HOOK,  N.  Y.  A.— Old  Series.  First  National. 

S.  B.  Colby,  Register.  F.  E.  Spinner,  Treasurer. 

Counterfeits  bear  date  Feb.  20,  1865;  genuine  Jan.  26,  1865. 

RICHMOND,  IND.  A.— Old  Series.         Richmond  National. 

John  Allison,  Register.  F.  E-  Spinner.  Treasurer. 

Counterfeits  bear  these  numbers:    Bank,  1,496;  Treasury, 
165,167. 

ROCHESTER.  N.  Y.  A. -Old  Series.       Flour  City  National. 

S.  B.  Colby,  Register.  F.  E.  Spinner,  Treasurer. 

Counterfeits  bear  date  July  i.}  1865;  genuine  Aug.  1,  1865. 

ROME,  N.  Y.  A.— Old  Series.  Central  National. 

S.  B.  Colby,  Register.  F.  E.  Spinner  Treasurer. 


176  HOW    TO    PROCEED. 

Counterfeits  bear  date  May  12,  1865;  genuine  Aug.  1,  1865. 

SYRACUSE,  N.  Y.  A.— Old  Series.  Syracuse  National. 

S.  B.  Colby,  Register.  F.  E.  Spinner.  Treasurer. 

Seal,  numbering  and  lathe-work  all  defective. 

TROY,  N.  Y.  A.— Old  Series.  Mutual  National. 

S.  B.  Colby,  Register.  F.  E.  Spinner,  Treasurer. 

Eagle's  wing  touches  date  1865,  on  counterfeit;  it  should 
not. 

VEVAY,  IND.  A.— Old  Series.  First  National. 

John  Allison,  Register.  F.  E.  Spinner,  Treasurer. 

Counterfeits  have  Bank  No.   1,496;  Treasury  No.   165,167. 

WATERFORD,  N.  Y.  A.— Old  Series.  Saratoga  Co.  National. 

S.  B.  Colby,  Register.  F.  E.  Spinner,  Treasurer. 

Counterfeits  have  Bank  No.  1,048;  Treasury  No.  810,516. 
Few  genuine  notes  out;  bank  in  voluntary  liquidation. 

WATKINS,  N.  Y.  A.— Old  Series.  Watkins  National. 

S.  B.  Colby,  Register.  F.  E.  Spinner,  Treasurer. 

Counterfeits  bear  date  Aug.  1,  1865;  genuine  May  15,  1865. 
Bank  now  out  of  existence. 

TWENTIES. 

INDIANAPOLIS.  IND  A.— Old  Series.  First  National. 

L.  E.  Chittenden,  Register.  F.  E.  Spinner,  Treasurer. 

Butt  of  gun  in  vignett  of  counterfeit  touches  border  of 
note;  it  should  not. 
MOHAWK,  N.  Y.  A.— Series  of  1882.  National  Valley. 

This  is  a  photographic  note,  printed  from  a  glass  plate, 
signed  Eli  Fox,  President,  H.  D.  Alexander,  Cashier;  Charter 
No.  1,130.  No  attempt  to  imitate  fibre  paper.  Counterfeiters 
and  plates  captured  and  not  many  notes  issued. 


COUNTERFEITING.  177 

NEW  YORK,  N.  Y.  B—  Old  Series.  First  National. 

L.  E.  Chittenden,  Register.  F.  E.  Spinner,  Treasurer. 

Counterfeits  bear  date  July  19,  1865;  genuine  Nov.  2,  1863. 

NEW  YORK,  N.  Y.  B—  Old  Series.  Market  National. 

L-  E.  Chittenden,  Register.  F.  E.  Spinner,  Treasurer. 

Counterfeits  bear  name  of  L.  E.  Chittenden,  Register;  gen- 
uine, S.  B.  Colby. 

NEW  YORK,  N.  Y.  B—  Old  Series.     Merchants'  National. 

L-  E.  Chittenden,  Register.  F.  E-  Spinner,  Treasurer. 

Counterfeits  bear  name  of  L.  E.  Chittenden,  Register;  gen- 
uine, S.  B.  Colby. 

NEW  YORK,  N.  Y.  B.— Old  Series.  Nat.  Bank  of  Commerce. 

L.  E.  Chittenden,  Register.  F.  E.  Spinner,  Treasurer. 

Counterfeits  bear  name  of  L.  E.  Chittenden,  Register;  gen- 
uine, S.  B.  Colby. 

NEW  YORK,  N.  Y.  B—  Old  Series.      NaT.  Shoe  &  Leather. 

L.  E.  Chittenden,  Register.  F.  E.  Spinner,  Treasurer. 

Counterfeits  bear  name  of  L.  E.  Chittenden,  Register;  gen- 
uine, S.  B.  Colby. 

NEW  YORK,  N.  Y.  B—  Old  Series.    Tradesmen's  National. 

L.  E.  Chittenden,  Register.  F.  E-  Spinner,  Treasurer. 

Counterfeits  bear  name  of  L.  E.  Chittenden,  Register;  gen- 
uine, S.  B.  Colby. 

PHILADELPHIA,  PA.  A.— Old  Series.  Fourth  National. 

L.  E.  Chittenden,  Register.  F.  E.  Spinner,  Treasurer. 

Bank  out  of  existence;  few  genuine  notes  out. 
PORTLAND,  CONN.  A.— Old  Series.  First  National. 

L.  E.  Chittenden,  Register.  F.  E.  Spinner,  Treasurer. 

Butt  of  gun  in  vignette  of  counterfeit  touches  border  of 
note;  also  in  vignette  on  left  of  note,  counterfeit  bears  1715; 
genuine,  1775. 


178  HOW  TO   PROCEED. 

UTICA,  N.  Y.  B.— Old  Series.  City  National. 

S.  B.  Colby,  Register.  F.  E.  Spinner,  Treasurer. 

No  such  bank  ever  existed. 

UTICA,  N..Y.  B.— Old  Series.  Oneida  National. 

I*  E.  Chittenden,  Register.  F.  E.  Spinner,  Treasurer. 

Counterfeit  notes  bear  name  of  L,.  E.  Chittenden;  genuine, 
S.  B.  Colby. 

FIFTIES. 

BUFFALO,  N.  Y.  A.— Old  Series.  Third  National. 

L.  E.  Chittenden,  Register.  F.  E.  Spinner,  Treasurer. 

Counterfeits  bear  name  of  L,.  E.  Chittenden,  Register;  gen- 
uine, S.  B.  Colby. 

NEW  YORK,  N.  Y.  A —Old  Series.  Central  National. 

L-  E.  Chittenden,  Register.  F.  E.  Spinner,  Treasurer. 

Only  genuine  charter  number  is  376.     If  notes  bear  L,.  E. 
Chittenden's  name  as  Register  and  also  these  words,  "Printed 
at  the  Bureau  of  Engraving  and  Printing,  U.  S.  Treasury  De- 
partment," in  upper  left  hand  corner,  they  are  counterfeit. 
NEW  YORK,  N.  Y.  A.  C. — Old  Series.     Mechanics'  National 

S.  B.  Colby,  Register.  F.  E.  Spinner,  Treasurer. 

This  note  was  altered  from  another  counterfeit  note  on 
Tradesmens'  National  Bank  of  New  York  City,  and  bears  the 
charter  number  of  that  bank,  905.  All  genuine  notes  on  this 
bank  bear  the  number  1250.     Very  few  of  these  notes  out. 

NEW  YORK.  N.  Y.  A.— Old  Series.  Metropolitan  National 

S.  B.  Colby,  Register.  F.  E-  Spinner,  Treasurer. 

Another  note  same  as  last,  bearing  the  charter  number  905. 
The  genuine  number  of  this  bank  is  1121. 

NEW  YORK,  N.  Y.  A.  C— Old  Series.  Nat.  Bank  of  Commerce. 

S.  B.  Colby,  Register.  F.  E.  Spinner,  Treasurer. 

A  note  altered  from  a  counterfeit  on  National  Broadway 


COUNTERFEITING.  1 79 

Bank,  New  York  City,  bearing  the  date  of  that  bank,  Jan.  10, 
1865.  Proper  charter  number  of  this  bank  is  733;  all  others 
are  counterfeit. 

NEW  YORK,  N.  Y.  A.  C.    Old  Series.       National  Broadway. 

S.  B.  Colby,  Register.  F.  E.  Spinner,  Treasurer. 

Two  flourishes  appear  in  the  genuine  note  that  are  omitted 
in  the  counterfeit ;  one  above  and  one  below  the  words  with 
the,  in  the  line  "Deposited  with  the  U.  S.  Treasurer  at  Wash- 
ington." The  hand  of  the  vignette  of  victory  is  without 
thumb  or  fingers  in  the  counterfeit,  although  they  show  plain- 
ly in  the  genuine. 

NEW  YORK,  N.  Y.  A.  D.~  Old  Series.  Tradesmen's  National 

S.  B.  Colby,  Register.  F.  E  Spinner,  Treasurer. 

The  bandage  does  not  cover  the  eyes  of  Justice  in  the 
counterfeit  as  it  does  in  the  genuine ;  and  other  defects,  same 
as  National  Broadway. 

NEW  YORK,  N.  Y.  A.-Old  Series.  Union  National. 

L.  E.  Chittenden,  Register.  F.  E.  Spinner,  Treasurer. 

Counterfeit  notes  bear  the  name  of  L,.  E.  Chittenden,  Reg- 
ister, and  the  date  April  15,  1864;  genuine  have  S.  B.  Colby's 
name  and  July  20,  1865. 

ONE  HUNDREDS. 

BALTIMORE,  MD.  A,~ Old  Series.         National  Exchange. 

S.  B.  Colby,  Register.  F.  £.  Spinner.  Treasurer. 

The  distance  between  the  edge  of  the  wing  of  Liberty  and 
the  shading  of  the  letter  C,  in  upper  right  hand  corner  of  note, 
is  nearly  twice  as  great  in  the  genuine  as  in  the  counterfeit, 
the  proper  distance  being  about  ,'6  inch.  In  the  vignette  in 
the  counterfeit  the  water  drops  from  only  one  side  of  the  oar: 
in  the  genuine,  from  both  sides.     The  wing  of  the  figure  of 


180  .HOW   TO    PROCEED. 

Liberty  is  much  nearer  the  base  of  the  check  letter  A  in  the 
counterfeit  than  in  the  genuine. 

BOSTON,  MASS.  A.— Old  Series.  First  National. 

L.  E.  Chittenden,  Register.  F.  E.  Spinner,  Treasurer. 

Same  defect  in  water  dropping  from  oar  as  above;  also  the 
crossing  of  the  letter  T  is  omitted  in  the  word  maintain,  at 
right  end  of  counterfeit  note. 

BOSTON,  MASS.  A-  Old  Series.  National  Revere. 

S.  B.  Colby,  Register.  F.  E.  Spinner,  Treasurer. 

Samuel  H.  Walley,  Pres't;  H.  Blasdale,  Cashier.  Descrip- 
tion same  as  National  Exchange  of  Baltimore. 

CINCINNATI,  OHIO.  A.- Old  Series.  Ohio  National. 

L.  E.  Chittenden,  Register.  F.  E.  Spinner,  Treasurer. 

Same  description  as  First  National,  of  Boston,  above. 

NEW  BEDFORD,  MASS.       A.— Old  Series.      Merchants'  National. 
S.  B.  Colby,  Register.  F.  E.  Spinner,  Treasurer. 

Signed  by  C.  R.  Tucker,  President ;  P.  C.  Howland,  Cash- 
ier. Description  same  as  National  Exchange,  of  Baltimore, 
above. 

NEW  YORK,  N.  Y.  A.— Old  Series.  Central  National. 

L.  E.  Chittenden,  Register.  F.  E.  Spinner,  Treasurer. 

H.  A.  Smyth,  Pres't;  W.  H.  Foster,  Cashier.  Same  as 
First  National  of  Boston,  above. 

PITTSBURG,  PA.  A.        Pittsburg  Nat.  B'k  of  Commerce. 

John  Allison,  Register.  Series  1875.  John  C   New,  Treasurer. 

Perhaps  the  most  dangerous  counterfeit  in  existence. 
Fibre  paper,  much  like  the  genuine,  is  used.  The  seal  and 
the  numbering  are  very  fine.  In  the  counterfeit  the  face  of 
the  sailor  in  bow  of  boat  resembles  a  skull.  On  the  counter- 
feit a  line  drawn  closely  under  the  words,  "  with  the  U.  S. 
Treasurer  at  Washington"  and  extended,  strikes  the  chin  of 


COUNTERFEITING.  l8l 

the  figure  of  Liberty ;  in  the  genuine  it  strikes  the  lower  lip. 
For  other  defects  see  description  of  National  Exchange,  of 
Baltimore,  above. 

PITTSFIELD.  MASS.  A.— Old  Series.        Pittsfield  National. 

S.  B.  Colby,  Register.  F.  E.  Spinner,  Treasurer. 

John  V.  Barker,  Pres't ;  E.  S.  Francis,  Cashier.     Descrip- 
tion same  as  National  Exchange,  of  Baltimore,  above. 

WILKESBARRE  PA.  A.— Old  Series  Second  National. 

L.  E.  Chittenden,  Register.  F.  E.  Spinner,  Treasurer. 

Abram  Nesbitt,  Vice-Pres't ;  E.  A.  Spalding,  Cashier.     De- 
scription same  as  National  Exchange,  of  Baltimore. 


UNITED  STATES  NOTES. 


The  United  States  Government  has  a  peculiar  system  of 
printing  and  numbering  notes,  which,  if  understood  and  ap- 
plied, will  enable  any  one  to  detect  about  three-fourths  of  the 
counterfeits  in  existence.  The  notes  are  printed  in  sheets  of 
four  and  afterward  cut  apart.  Each  note,  on  the  sheet  gets  one 
of  the  four  check  letters,  A,  B,  C  or  D,  beginning  at  the  top 
and  going  regularly  through,  thus  using  all  the  check  letters 
on  each  sheet.  The  check  letter  is  placed  in  two  places  on 
each  bill,  in  the  upper  and  lower  corner,  diagonally  opposite. 
The  system  of  numbering  used  in  connection  with  the  check 
letter  is  quite  unique.  It  is  this :  Every  number  which  when 
divided  by  four  leaves  a  remainder  one,  is  given  the  check  let- 
ter A.  Those  which,  divided  by  four,  give  a  remainder  two, 
get  the  check  letter  B ;  if  the  remainder  be  three,  the  letter  C 
is  used;  if  the  quotient  is  integral,  no  remainder,  then  the 
check  letter  D  is  used. 

It  can  be  laid  down  as  an  infallible  rule  that  if  the  number 
of  a  United  States  note  be  divided  by  four  with  a  result  differ- 


1 82  HOW    TO    PROCEED. 

ent  from  that  stated  above  it  is  counterfeit.  Observe  that  this 
rule  only  applies  to  United  States  notes,  not  to  National  Bank 
notes  or  silver  or  gold  certificates. 

Of  course  some  of  the  counterfeit  notes  are  numbered  and 
lettered  in  accordance  with  this  rule  and  in  that  case  this 
method  of  dividing  by  four  would  not  show  the  fraud. 

The  following  general  points  will  also  aid  in  detecting  bad 
United  States  bills:  The  old  issue  of  United  States  notes  con- 
sisted of  four  series.  They  were  all  signed  by  L,.  E.  Chitten- 
den, Register;  F.  E.  Spinner,  Treasurer.  The  series  of  1869 
were  all  signed  by  John  Allison,  Register;  F.  E.  Spinner, 
Treasurer.  The  series  of  1875  were  all  signed  by  John  Alli- 
son, Register,  and  by  John  C.  New,  A.  U.  Wyman  or  Jas.  Gil- 
fillan,  as  Treasurer.  Many  counterfeits  have  been  issued  on 
this  series  from  the  i's  to  the  5o's.  Only  two  denominations, 
the  io's  and  20's,  of  the  series  of  1878  have  been  counterfeited. 
Of  the  series  of  1880,  the  2's,  5's,  io's  and  20's  have  been 
counterfeited.     Gold  certificates  have  not  been  counterfeited. 

The  Government  began  using  fibre  paper  in  1 869 ;  previous 
to  that  time  all  United  States  notes  were  printed  on  plain  bank 
note  paper.  Nearly  all  the  old  series  were  counterfeited,  as 
there  was  little  difficulty  in  imitating  the  paper.  This  fibre 
paper  is  known  as  the  Wilcox  patent  and  consists  of  a  short 
blue  fibre  of  bluish  cast,  distributed  promiscuously  all  through 
the  paper.  Under  the  microscope  the  fibres  look  like  coarse 
hairs,  differing  in  length  and  shape,  and  having  no  systematic 
arrangement  whatever.  Later  on,  in  1878,  another  patent  pa- 
per was  adopted,  known  as  the  Crane  patent.  If  consisted  of 
two  silk  threads  running  lengthwise  through  the  note. 

With  these  general  remarks,  and  the  following  particular 
descriptions,  we  believe  any  one  with  ordinary  observation  and 
a  little  study  can  detect  any  counterfeit  United  States  note  in 
existence. 


COUNTERFEITING.  1 83 

COUNTERFEIT  UNITED  STATES  NOTES. 

Act  July  11,  1862.  I'8.— B.  C.  D.  Dated  Aug.  1,  1862.' 

L.  E.  Chittenden,  Register.  F.  E.  Spinner,  Treasurer. 

A  bad  counterfeit.  Lathe-work,  colors  and  number  of  note 
all  poor.  Portrait  of  Chase  miserably  engraved  and  the  small 
ones  in  border  badly  blurred. 

Act  March  3,  1863.  I's.— D.  Series  of  1875. 

John  Aujson,  Register.  A.  U.  Wyman,  Treasurer. 

A  novice  would  reject  this  note.  Several  words  mis-spelled 
in  panel  of  back.  Portrait  of  Washington  bad.  Looks  like  a 
wood-cut. 

Act  March  3,  1862.  2's.— B.  C.  D.  Dated  Aug.  1,  1862. 

L.  E.  Chittenden,  Register.  F.  E.  Spinner,  Treasurer. 

Hamilton's  head  poorly  engraved  and  engraving  very  bad 
all  through.  Imprint  of  Bank  Note  Company,  on  margin  of 
back,  imperfect. 

Act  March  3,  1863.  2's—  D.  Series  of  1875. 

John  Aiaison,  Register.  A.  U.  Wyman,  Treasurer. 

So  bad  that  it  needs  no  description.  Badly  blurred  and 
faded. 

Act  March  3,  1863.  2's.— D.  Series  of  1880. 

*B.  K.  Bruce,  Register.  A.  U.  Wyman,  Treasurer. 

A  slight  examination  would  result  in  the  rejection  of  this 
note.  It  is  coarse  and  scratchy  and  full  of  errors,  especially  ho 
spelling.  Portrait  of  Jefferson  has  but  one  eye  and  the  name 
is  spelled  Jeffrson. 

Act  Feb.  25,  1862.  5's.— A.     Series  90.     Dated  March  10,  t86*. 

L.  E.  Chittenden,  Register.  .  F.  E.  Spinner.  Treasurer. 

Numbering  is  poor  and  lathe-work  indistinct,  especially 
around  "5,"  in  upper  right  hand  corner,  where  it  can  not  be 


1 84  HOW   TO    PROCEED. 

traced.     Statue  of  Liberty  and  head  of  Hamilton  coarsely  en 
graved. 

Act  Feb.  25,  1862.  5'S. — A.    Series  114.    Dated  March  10,  1S63. 

L.  E.  Chittenden,  Register.  F.  E.  Spinner,  Treasurer. 

All  counterfeits  of  this  issue  are  dated  March  io,  1863, 
while  the  genuine  are  dated  March  10,  1862. 

Act  March  3,  1863.  5's.— A.  D.  Series  70&77.  Dated  Mar.  10, 1863. 

L.  E.  Chittenden,  Register.  F.  E.  Spinner,  Treasurer. 

Statue  of  Liberty  coarse;  head  of  Hamilton  good.  Lathe- 
work  around  figure  "5"  can  not  be  traced. 

Act  March  3,  1863.  5'S—  C.  Series  of  1875. 

John  Allison,  Register.  A.  U.  Wyman,  Treasurer. 

A  very  fine  counterfeit,  which  would  easily  deceive  any 
one,  except  an  expert.  Genuine  notes  are  printed  on  fibre  pa- 
per; counterfeit  on  plain  paper,  but  an  attempt  has  been  made 
to  imitate  the  fibres  by  printing  fine  lines  in  the  left  panel  of 
the  back.  Jackson's  portrait  is  rather  coarsely  engraved,  and 
the  shading  in  some  places  is  bad,  especially  of  fhe  words, 
United  States,  in  title,  being  scratchy.  "Series  of  1875,"  in 
genuine  is  enclosed  in  flourishes,  which  are  omitted  in  coun- 
terfeit. 

Act  March  3,  1863.  5'S—  D.  Series  of  ^1875. 

John  Allison,  Register.  A.  U.  Wyman,  Treasurer. 

A  fair  photographic  counterfeit,  numbered  68,058,120. 
Some  of  the  notes  are  a  little  short.  An  attempt  has  been 
made  to  imitate  the  fibre  paper  by  pasting  two  very  thin  sheets 
together  with  bits  of  fibre  scattered  between  them.  "  Series 
1875,"  at  right  of  vignette,  is  black,  should  be  pink. 

Act  March  3,  1863.  5'8  —  D.  Series  of  1875. 

John  Allison,  Register.  A.  U.  Wyman,  Treasurer. 

Same  photographic   process   and   number   as   one   above. 


COUNTERFEITING.  1 85 

The  black  ground,  made  by  photographing,  shows  through  the 
pink  coloring  that  has  been  put  on  the  seal  and  Treasury  num- 
bers. The  genuine  bears  the  figures  1875,  in  red  ink,  upper 
right  corner;  they  are  entirely  omitted  from  this  counterfeit. 

Act  March  3,  1863.  5's—  A.  &  D.  Series  of  1875. 

John  Allison,  Register.  A.  U.  Wyman,  Treasurer. 

A  bad  photographic  counterfeit.  Dark  and  blurred.  An- 
other counterfeit  of  this  same  series,  with  check  letter  A,  also 
photographic,  is  so  good  as  to  deceive  those  accustomed  to 
handling  money.  No  attempt  has  been  made  to  imitate  the 
fibre  paper.  Seal  is  poor,  looking  smeary;  numbering  good. 
Engraving,  under  a  glass,  looks  more  like  wood-cut  than  steel. 

Act  March  3,  1863.  5's. — B.  Series  of  1880. 

B.  K.  Bruce,  Register.  A.  U.  Wyman,  Treasurer. 

A  coarse  and  scratchy  counterfeit,  full  of  errors  in  spelling, 
Treasury,  under  Bruce,  being  spelled  Trastay. 

Act  Feb.  25,  1S62.  10'S. — B.  C.  7  NewSeries.  Dated  Mar.  io,  1862. 

L,.  E.  Chittenden,  Register.  F.  E.  Spinner,  Treasurer. 

Liable  to  deceive.  Lathe-work  and  shading  of  letters 
coarse.  Green  ink  little  too  dark.  Eagle  not  finely  engraved, 
and  Lincoln's  portrait  lacks  life  and  expression.  Four  green 
dots  can  be  seen  in  the  genuine,  left  of  figure  1  in  10,  in  the 
green  medallion  counters;  only  three  can  be  found  in  the  coun- 
terfeit. 

Act  Feb.  25,  1862.  10'S.— B.  C.  Series  19.  Dated  March  10,  1863. 

h.  E.  Chittenden,  Register.  F.  E.  Spinner,  Treasurer. 

A  good  imitation,  but  the  Treasury  number  is  bad  in  color 
and  formation  of  figures.  Lincoln's  portrait  is  poor  in  work- 
manship and  likeness.  Extend  the  line  on  upper  side  of  note 
under  Treasury  number.  On  genuine  it  will  strike  below  the 
letter  N  in  New  Series ;  on  the  counterfeit  it  will  strike  about 
the  middle  of  the  letter  N. 


1 86  HOW  TO   PROCEED. 

Act  Feb.  25,  1862.  lO'S.-B.  C.  23NewSeries.  DatedMar.10,1863. 

L.  E.  Chittenden,  Register.  F.  E.  Spinner,  Treasurer. 

A  very  fine  piece  of  work  and  really  dangerous.  The  line 
under  the  Treasury  number  when  extended  shows  the  same 
defect  as  above.  The  red  figures  are  a  very  little  smaller  than 
in  the  genuine  and  the  red  is  slightly  blurred.  The  scroll 
work  in  genuine  note  reaches  to  figure  1  in  1862,  right  of  Lin- 
coln ;  in  counterfeit  it  extends  to  figure  2. 

Act  Feb.  25,  1S62.  10'S.— B.C.D.  52  Series.  Dated  Mar.  10,  1862. 

L.  E.  Chittenden,  Register.  F.  E.  Spinner,  Treasurer. 

Very  dangerous;  has  deceived  skilled  money  handlers. 
The  work  is  so  good  that  the  general  appearance  will  pass  it 
almost  without  hesitation,  but  there  is  one  infallible  guide:  On 
each  side  of  the  imprint  of  the  American  Bank  Note  Co.  at 
top,  on  the  genuine  are  fifteen  small  x's;  on  the  counterfeit 
are  fifteen  x's  on  the  right  and  sixteen  on  the  left. 

Act  March  3,  1863.  I0's— A.B. CD.  53  New  Series.  Dated  Mar.io,  1863. 

L.  E.  Chittenden,  Register.  F.  E.  Spinner,  Treasurer. 

Another  clever  and  dangerous  counterfeit.  There  are  said 
to  be  nine  different  counterfeits  on  this  issue  of  io's.  Great 
care  should  be  exercised  in  receiving  them.  Notice  closely 
the  lathe-work  surrounding  the  io's  in  green  medallion.  It  is 
slightly  blurred  in  the  counterfeit.  None  but  the  cleverest  ex- 
pert would  detect  anything  wrong  with  the  engraving  of  the 
portrait  of  Lincoln,  with  the  numbering,  or  the  ink — all  are 
good. 

Act  March  3,  1863.  I0's.— C.  Series  of  1875. 

John  Alwson,  Register.  John  C.  New,  Treasurer. 

Numbering  and  engraving  poor.  Lathe-work  fair.  Imita- 
tion fibre  paper,  done  by  printing  lines  in  the  back  of  note. 
Notice  this  line:  "This  note  is  alegal  tender  forten  dollars;" 
no  space  between  a  and  legal,  and  for  and  ten.     That  is  the 


COUNTERFEITING.  187 

way  it  appears  on  the  counterfeit.     On  back  of  note,  in  right 
panel,  this  is  spelled  tnis.     A  very  clever  counterfeit. 

Act  March  3,  1863.  10's.— D.  Series  of  1878. 

John  Allison,  Register.  A.  U.  Wyman,  Treasurer. 

A  poor  photographic  counterfeit.  Numbers  printed  badly. 
Webster's  portrait  bad.  Words  "Register  of  Treasury"  and 
"Treasurer  of  the  United  States,"  entirely  omitted. 

10'S—  D.  Series  of  1880. 

B.  K.  Bruce,  Register.  A.  U.  Wyman,  Treasurer. 

A  photographic  counterfeit  by  the  pen  and  ink  process. 
General  appearance  good,  but  suffers  upon  close  scrutiny.  No 
imprint  of  the  printer  at  top  of  note.  Also  "Series  of"  over 
1880,  omitted.  Also  the  words  "Register  of  Treasury"  and 
"Treasurer  of  the  United  States,"  omitted.  Green  ink  used  is 
bad  and  will  come  off  by  moistening.  Fibre  paper  imitated 
by  printing  lin^s  in  lengthwise.  A  large  brown  spike  seal  is 
on  the  counterfeit. 

Act  Feb.  25,  1862.  20'8—  B.  C.  Series  6.  Dated  March  10,  1862. 

L-  E-  Chittenden,  Register.  F.  E.  Spinner,  Treasurer. 

This  counterfeit  will  readily  deceive.  The  Treasury  num- 
bers on  the  counterfeit  are  too  large.  Lathe-work  bad  and  im- 
print of  Bank  Note  Co.  imperfect  and  irregular.  The  small 
dots  across  top  and  bottom  of  big  green  figure  20  are  very  in- 
distinct in  counterfeit. 

Act  Feb.  25,  1862.        20'8.— A.B.C.D.  New  Series  7.  Dated  Mar.  10, 1862. 
L.  E.  Chittenden,  Register.  F.  E.  Spinner,  Treasurer. 

Bad.  Can  not  trace  lines  of  lathe-work.  Engraving  coarse. 
Ink  bad.     Otherwise  same  as  Series  6,  above. 

Act  Feb.  25,  1862.  20'S.— A. B.C.  Series  24.  Dated  Mar.  10,  1862. 

L.  E.  Chittenden,  Register.  F.  E-  Spinner,  Treasurer. 

Better  than  the  last,  but  not  good.     Lines  of  lathe-work  in 


1 88  HOW   TO    PROCEED. 

counters  can  not  be  traced.     Letters  of  imprint  irregular  and 
crooked.     Other  description  same  as  Series  6. 

Act  March  3,  1863.  20's.— A.     Series  15.  Dated  March  10,  1862. 

L.  E-  Chittenden,  Register.  F.  E.  Spinfer,  Treasurer. 

Fair  lathe-work  and  engraving.     See  Series  6,  above. 

Act  March  3,  1863.  20's.— A.  New  Series.  Dated  Mar.  10,  1863. 

L.  E.  Chittenden,  Register.  F.  E.  Spinner,  Treasurer. 

Bad  and  should  not  deceive  any  one.  Lathe-work,  print- 
ing, numbers,  ink  and  engraving  all  bad.  Same  otherwise  as 
Series  6. 

Act  March  3,  1863.  20's.— A.  New  Series  19.  Dated  Mar.  10,  1863. 

L.  E.  Chittenden,  Register.  F.  E.  Spinner,  Treasurer. 

Very  poor.     Same  as  Series  6. 

Act  March  3,  1863.  20's.— A.  B.  C.  D.  Series  of  1875. 

John  Allison,  Register.  John  C  New,  Treasurer. 

Good  at  first  sight,  but  full  of  errors  on  close  inspection. 
Hamilton's  portrait  splendid,  but  the  back  ground  has  been 
shaded  with  a  brush.  Imitation  of  fibre  paper  done  by  past- 
ing tissue  paper  over  right  panel  of  back,  covering  some 
fibrous  material.     Moistening  removes  the  ink. 

Act  March  3,  1863.  20's.— B.  Series  of  1875. 

John  Allison,  Register.  James  Gilfillan,  Treasurer. 

Photographic  and  pen  and  ink  process,  producing  a  splen- 
did and  dangerous  counterfeit,  signed  James  Gilfillan,  Treas- 
urer. This  is  an  infallible  key  to  this  note,  as  no  genuine 
notes  of  this  denomination  and  series  were  signed  by  Gilfillan. 

Act  March  3,  1863.  20's—  A.  B.  C.  D.  Series  of  1878. 

John  Allison,  Register.  James  Gilfillan,  Treasurer. 

Pen  and  ink  work,  much  like  the  one  above.  James  Gil- 
fillan, however,  signed  genuine  notes  of  this  denomination 
and  series.     At  the  top  of  the  genuine  note,  directly  under  the 


COUNTERFEITING.  1 89 

words  "Legal  Tender  for  Twenty  Dollars,"  is  the  imprint 
"Engraved  and  Printed  in  the  Bureau  of  Engraving  and 
Printing."    This  last  line  is  entirely  omitted  in  the  counterfeit. 

Act  March  3,  1863.  20'8.— A.  B.  C.  D.  Series  of  1880. 

B.  K.  Bruce,  Register.  A.  U.  Wyman,  Treasurer. 

A  fine  counterfeit,  described  same  as  last. 

Act  Feb.  25.  1862.  50'S—  C.  Dated  March  io,  [862. 

L.  E.  Chittenden,  Register.  F.  E.  Spinner,  Treasurer. 

Very  poor.     Lathe-work,  numbers  and  engraving  all  bad. 

Act  March  3,  1863.  50's.— A.B.C.D.  1  NewSeries.  Dated  Mar.  10, 1863. 

L.  E.  Chittenden,  Register.  F.  E.  Spinner,  Treasurer. 

Not  good.  Hamilton  badly  engraved.  Proper  distance  be- 
tween signature  of  Chittenden  and  Spinner  is  i$4  inch;  in 
this  counterfeit  it  is  only  \yi  inch. 

Act  March  3,  1863.  50's—  A.  C.  D.  New  Series  1. 

Pat.  June  30,  1857.  Dated  March  10,  1S63. 

L.  E.  Chittenden,  Register.  F.  E.  Spinner,  Treasurer. 

A .  splendid  counterfeit  and  very  dangerous.  Hamilton 
inely  engraved,  equal  to  genuine.      Buttons  on    Hamilton's 

)at  in  counterfeit  can  scarcely  be  seen.  In  the  large  figures 
So  the  white  lines  cross  the  lower  portion  of  the  figure  o;  in 

le  counterfeit  they  do  not. 

Let  March  3,  1863.  50's.— A.  C.  D.  New  Series  2. 

>at.  April  28,  1868.  Dated  March  10,  1863. 

L,.  E.  Chittenden,  Register.  F.  E.  Spinner,  Treasurer. 

An  exceedingly  fine  and  dangerous  counterfeit,  splendidly 
engraved  and  numbered.  Octagonal  shapes  surround  the 
small  50's  on  border  of  back ;  they  are  circles  on  counterfeit. 
At  lower  left  end  a  mistake  was  made  by  omitting  the  o  from 
one  number  and  running  it  in  with  the  next,  enclosing  both  in 
one  circle,  and  making  it  read  550.  New  Series  1  applies  to 
this. 


190  HOW   TO    PROCEED. 

Act  March  3,  1863.  50's.— B.  Series  of  1S69. 

John  Allison,  Register.  F.  E.  Spinner,  Treasurer. 

Very  fair  work.     Genuine  on  fibre  paper ;  counterfeit  on 

SERIES  OF  SERIES  OF 

plain.     Genuine  have  this:      /^-      counterfeit   this:     xQA* 
r  1869;  '     1869; 

the  flourish  omitted. 

Act  March  3,  1S63.  50's—  D.  Series  of  1875. 

Photographic,  pen  and  ink  process.  Moisture  removes  ink 
and  insures  detection.     Otherwise  fair. 

Act  Feb.  25,  1862.  lOO'S—  B.  C.  Dated  March  10,  1862. 

L.  E.  Chittenden,  Register.  F.  E.  Spinner,  Treasurer. 

Feathers  of  eagle's  tail  indistinct  and  eagle  coarsely  en- 
graved. Figures  100,  on  back,  right  of  circle,  are  reversed, 
thus  001.  Few  genuine  notes  of  this  denomination  and  series 
now  out. 

Act  March  3,  1863.  500's—  B.  C.  Series  of  1869. 

John  Allison,  Register.  F.  E.  Spinner,  Treasurer. 

A  wonderfully  perfect  and  dangerous  counterfeit,  one  0/ 
the  finest  ever  issued  All  the  work  is  good.  Lobe  of  Adams' 
ear  is  indistinct.  Button  on  the  coat  near  lapel  is  square, 
should  be  round.  Star  at  right  of  Treasury  number  is  slightly 
blurred.  This  note  is  printed  on  fibre  paper,  apparently  gen- 
uine. Left  foot  of  Liberty,  as  it  extends  from  garment  has  a 
clubbed  appearance. 

1,000's .— A.  B.  D. 

Act  March  3,  1863.  Dated  Mar.  10,  '62  &  Mar.  10,  '63. 

L.  E.  Chittenden,  Register.  F.  E.  Spinner,  Treasurer. 

This  is  a  very  dangerous  counterfeit,  and  it  is  not  probable 
that  a  genuine  note  of  this  series  and  denomination  will  be 
presented  to  one  of  our  readers  in  a  life  time,  for  very  few  gen- 
uine notes  are  out.  Bankers  should  examine  these  notes  with 
great  care  before  accepting  them.     The  United  States  Treas- 


COUNTERFEITING.  191 

ury   Department  prepared  the  following  description   of  this 
counterfeit  soon  after  it  appeared: 

"General  appearance  very  good  and  work  well  executed; 
paper  made  greasy  to  make  it  appear  genuine.  In  the  centre 
of  the  bill  the  vignette  of  Robert  Morris,  though  well  formed, 
looks  as  if  pock-marked,  and  white  of  eyes  like  pin-holes;  eye- 
brows irregular;  nose  as  if  pinched,  and  the  shadow  on  its 
left,  near  the  point,  seems  a  part  of  that  organ ;  while  the  orig- 
inal has  a  bright,  intelligent  face,  and  nose  straight  and  clearly 
defined.  Large  words  'United  States'  rather  dark,  especially 
the  shading;  lathe-work  in  die  and  that  in  the  border  well 
done,  but  not  as  clear  and  plain  as  in  the  original;  all  the  let- 
tering in  the  bill  shows  the  ink  plainly,  as  if  India  ink.  This 
may  also  be  said  of  the  signatures,  looking  as  if  stamped — that 
of  Spinner  being  a  plain  imitation;  that  of  Chittenden  has  a 
striking  defect,  its  termination  forming  a  serpent's  head;  the 
seal  is  not  perfectly  round.  The  back  of  the  bill  shows  no 
prominent  defects,  only  a  general  dingy  appearance." 

A  very  dangerous  counterfeit.  Engraving  nearly  equal  to 
the  genuine.  A  singular  mistake  was  made  in  the  genuine  is- 
sue under  this  act,  which  the  counterfeiters  copied,  that  of 
dating  the  notes  March  10,  1862,  instead  of  1863;  this  error 
was  corrected  in  a  subsequent  issue  of  the  genuine. 

On  the  face  of  the  counterfeit,  the  lathe-work  in  the  border 
and  on  the  corner  of  the  note  is  much  inferior  to  the  genuine. 

On  left  end  of  face  of  the  note,  in  border,  the  words  "  Act 
of  March  3,  1863,"  are  much  coarser  than  in  genuine. 

The  circles  of  1  ,ooo  that  surround  the  portrait  of  Morris  are 
much  more  irregular  on  the  counterfeit  than  on  the  genuine. 

On  the  counterfeit  the  face  of  Morris  is  more  front  view. 
On  genuine  the  eyes  cast  more  to  the  left. 

The  imprint  "American  Bank  Note  Co.,"  on  right  end  of 
border,  is  much  narrower  than  on  the  genuine. 


192  HOW   TO   PROCEED. 

On  back  of  note  the  four  points  at  each  end  of  note  are 
much  more  pointed  than  on  genuine. 

These  differences  were  all  noted  by  comparison  with  a  gen- 
uine note  of  same  date  and  check  letter. 


COUNTERFEIT  SILVER  CERTIFICATES. 

Act  Aug.  4,  1886.  I's—  D.  Series  of  1886. 

W.  S.  Rosecrans,  Register.  James  M.  Hyatt,  Treasurer. 

Bust  of  Martha  Washington  has  a  blurred  and  scratchy  ap- 
pearance. The  fine  parallel  lines  that  bear  the  Treasury  num- 
bers are  too  coarse  and  not  exactly  parallel.  The  note  is 
shorter  than  the  genuine  and  has  no  parallel  silk  threads. 
"Treasurer  of  the  United  States"  is  bacUy  printed  and  ir- 
regular. 

2's. 

This  counterfeit  has  no  resemblance  to  any  Government 
issue  of  silver  certificates.  It  is  a  bold  blnff.  On  the  right 
end  of  face  of  note,  is  a  spread  eagle,  and  on  the  left  end,  two 
Indians,  one  standing,  the  other  kneeling.  The  back  is 
square,  and  green,  the  word  Silver  running  through  the  centre 
in  large  white  letters.  This  counterfeit  is  so  bad  in  every  re- 
spect that  there  is  no  excuse  for  any  one  to  be  deceived  by  it. 

Act  Aug.  4,  1886.  5'S.— A.  Series  of  1886. 

W.  S.  Rosecrans,  Register.  James  W.  Hyatt,  Treasurer. 

Good  appearance;  color  and  seal  very  fair.  The  notch  of 
the  key  in  the  seal  should  have  a  T  shape,  while  in  counterfeit 
it  is  a  straight  line.  Grant's  portrait  looks  soiled  and  scratchy, 
with  two  white  patches  on  lower  lip.  Paper  too  light  and  no 
parallel  silk  threads.     Note  also  too  short. 

Act  Aug.  4.  1886.  5'S.— D.  Series  of  18S6. 

W.  S.  Rosecrans,  Register.  James  W.  Hyatt,  Treasurer. 


COUNTERFEITING.  1 93 

A  well  executed  counterfeit  and  rather  dangerous,  num- 
bers and  seal  being  splendidly  colored.  Grant's  portrait  is  not 
good,  lacking  expression  and  having  a  coarse,  scratchy  appear- 
ance. Bad  shading  on  the  left  side  of  face  and  white  patches 
on  right  side.  Stud  in  shirt  front  is  missing.  The  enclosing 
etched  lines  are  much  deeper  and  more  clean  cut  in  the  gen- 
uine, making  a  darker  back  ground  and  giving  the  portrait  a 
much  more  life  like  expression.  The  words  "  Register  of  the 
Treasury,"  are  badly  printed  and  irregular.  The  face  of  the 
counterfeit  has  a  much  lighter  appearance  than  the  genuine. 
Back  of  note,  figure  6  in  1886,  is  bad,  looking  something  like 
o.  The  dark  green  lines  around  the  medallion  to  represent' 
milling  are  scarcely  visible  in  the  counterfeit,  while  in  the 
genuine  they  are  clear  and  make  the  coin  stand  out  in  relief. 

Act  Feb.  28,  1878.  10's  —  D.  Series  of  1880. 

G.  W.  Scofield,  Register.  Jas.  Gilfillan,  Treasurer. 

A  photographic  pen  and  ink  process  counterfeit,  on  poor, 
thin  paper,  which  ought  not  to  be  dangerous.  The  Crane's 
patent  paper  used  in  the  genuine  is  badly  imitated  by  two  par- 
allel lines  drawn  across  the  note.  Moisture  removes  the  ink 
and  is  a  sure  guide  to  the  fraudulent  character  of  the  note. 
This  counterfeit  is  "  Payable  at  Washington,  D.  C,  No. 
1,650,916." 

Act  Feb.  28,  1878.  I0'S  —  D.  Series  of  1880. 

G.  W.  Scofield    Register.  Jas.  Gilfillan,  Treasurer. 

Another  photographic  pen  and  ink  counterfeit,  payable  at 
Washington,  D.  C,  No.  B.  109,016.  Note  is  a  little  too  short 
and  moisture  removes  ink.  The  photographic  black  also 
shows  through  the  pink  coloring  that  has  been  put  on  by 
hand. 

Act  Feb.  28.  1878.  I0'S  —  D.  Series  of  1880. 

G.  W.  Scofield,  Register.  Jas.  Gilfillan,  Treasurer. 

*3 


194  HOW  TO   PROCEED. 

Very  bad  counterfeit;  %  inch  shorter  than  genuine.  Lathe- 
v  ork  poor.  Paper  is  made  of  two  thin  layers  of  tissue  with 
the  silk  parallel  threads  placed  between  them  to  imitate  the 
Crane's  patent  of  the  genuine.  On  the  back,  the  word  all  is 
omitted  from  "And  all  public  dues,"  and  "whenso  received," 
is  printed  thus,  without  space  between  when  and  so.  Treasury 
numbers  uneven. 

Act  March  31,  1878.  10'S.— C  Series  of  1880.' 

B.  K.  BRUCE,  Register.  A.  U.  Wyman,  Treasurer. 

A  poorly  executed  photographic  pen  and  ink  counterfeit, 
with  the  words,  "Register  of  the  Treasury"  and  "  Treasurer 
of  the  United  States"  left  out.  Paper  thin  and  poor,  and  of  a 
yellowish  tint.  No  attempt  to  imitate  fibre  paper.  Robert 
Morris's  portrait  is  badly  engraved  and  his  name  is  omitted 
from  beneath.     Shading  is  poorly  done  with  India  ink. 

Act  Feb.  28,  1878.  20'8.— B.  Series  of  1880. 

G.  W.  Scofield,  Register.  Jas.  Gilfiu.an,  Treasurer. 

A  rather  poor  photographic  pen  and  ink  counterfeit,  on 
cheap,  thin  paper,  payable  at  Washington,  D.  C,  No.  B. 
675,114.  The  description  of  the  second  one  above,  io's  D, 
will  also  answer  for  this. 

There  is  another  counterfeit  of  this  same  series,  B.  K. 
Bruce,  Register;  Jas  Gilfillan,  Treasurer.  Register  is  mis- 
spelled, thus:  Register,  and  "Treasury"  is  indistinct.  "Treas- 
urer," under  Gilfillan's  name,  is  spelled  Tnwsurer,  and  the  let- 
ters of  "United  States"  are  very  badly  made.  In  the  imprint 
on  back,  "Engraved"  is  spelled  engraved,  and  mis-spelled 
words  occur  which  can  easily  be  picked  out  by  a  little  study. 

Act  Feb.  28.  1878.  20'8—  C  Series  of  1880. 

G.  W.  SCOFIELD,  Register.  Jas.  Gilfillan,  Treasurer. 

A  bad  counterfeit,  photographic  pen  and  ink  process,  de- 
scribed same  as  io's  D  above,  top  of  page. 


COUNTERFEITING.  195 

Act  Feb.  28,  1878.  20'8.— C  Series  of  1880. 

B.  K.  Bruce,  Register.  Jas.  GilfiIvLAN,  Treasurer. 

A  fair  counterfeit,  on  thick,  greasy  and  stiff  paper,  one- 
eighth  inch  shorter  than  genuine  and  without  any  attempt  to 
imitate  the  fibre  paper.  In  the  word  certificate,  in  left  panel, 
the  letters  R,  T  and  F  are  printed  up  side  down.  The  periods 
after  the  initials  of  Bruce's  name  are  omitted,  thus :  B  K 
Bruce.  Taxes  on  back  is  spelled  tares  and  engraved  is  spelled 
engraved.  Proper  color  for  the  seal  is  brown  or  nearly  so, 
this  is  brick  red.  Only,  two  sets  of  treasury  numbers  have 
been  seen  on  these  counterfeits,  Bi,46yx  and  Bi,487,4i5x. 

20's.— D. 

G.  W.  Scofield,  Register.  Jas.  GiiyFiiXAN,  Treasurer. 

Not  a  dangerous  counterfeit ;  general  appearance  bad ;  pa- 
per thin  and  poor;  no  silk  thread  running  lengthwise  and  no 
series  given.  Ink  lacks  brilliancy  and  lustre.  Upper  half  of 
back  very  blue — looks  like  it  had  been  wet  and  coloring  had 
run.     Lower  half  yellowish  white. 

I'S—  D.  Series  of  1886. 

W.  S.  Rosecrans,  Register.  James  W.  Hyatt,  Treasurer. 

A  fair  and  rather  dangerous  counterfeit.  The  check  letter 
is  D1768.  A  defect  is  noticeable  in  the  left  eye  of  Martha 
Washington,  otherwise  the  portrait  is  fair.  The  lines  around 
the  portrait  are  not  clean  cut  and  lack  distinctness.  The  num- 
bering is  not  good,  the  ink,  upon  comparison  with  the  gen- 
uine being  quite  a  different  blue.  Lathe-work  almost  equal  to 
the  genuine.  Imprint  of  Bureau  of  Engraving  and  Printing 
is  bad.  The  back  of  the  certificate  is  an  inferior  piece  of  work 
all  through.     No  attempt  to  imitate  the  silk  threads. 

5'S—  D.  Series  of  1886 

W.  S.  Rosecrans,  Register.  Jas.  W.  Hyatt,  Treasurer. 

A   dangerous  counterfeit.     Check  letter  D2017.     Grant's 


196  HOW   TO   PROCEED. 

portrait  is  coarse  and  scratchy  and  lacks  life  ana  expression. 
Lathe-work  in  most  parts  is  well  done,  but  the  shading  to  the 
letters  is  not  good.  In  the  key  of  the  small  round  seal  is  a 
perfectly  formed  letter  I,  which  the  genuine  does  not  have. 
The  imprint  is  bad,  and  also  the  words  Register  and  Treasurer 
under  the  names  of  Rosecrans  and  Hyatt  are  bad.  Number- 
ing good  and  ink  a  good' imitation  of  the  blue  genuine.  This 
counterfeit  and  the  last  above  are  produced  by  the  photo-elec- 
tro process  and  printed  from  glass  plates.  The  paper  used  is 
poor,  being  stiff  and  coarse,  and  no  attempt  to  imitate  fibre 
paper  used  in  genuine. 


COUNTERFEITING  COIN. 

There  are  two  principal  ways  of  counterfeiting  coin,  with  a 
mold  and  with  a  die.  The  most  dangerous  counterfeit  coins 
are  struck  with  a  die.  They  are  always  more  clean-cut  in  ap- 
pearance, the  lettering  and  milling  are  usually  good,  and  the 
ring  is  much  better  than  when  made  in  a  mold.  Counterfeits 
of  gold  coin  are  generally  made  from  a  die.  They  are  some- 
times so  nearly  perfect  in  appearance  that  an  expert  could  not 
detect  one  by  sight.  The  reeding  is  generally  the  most  defec- 
tive part.  By  reeding  is  meant  the  raised  edge  like  a  little 
moulding  running  around  the  coin.  By  milling  is  meant  the 
indented  edge  of  the  coin.  Pennies  and  5  cent  nickels  have 
no  milling.     All  coins  are  reeded. 

The  principal  way  of  detecting  these  counterfeits  of  gold 
coins  is  by  their  weight.  However  perfect  they  may  be  in 
other  respects  they  are  nearly  always  light  in  weight,  and  if 
the  weight  is  right  or  nearly  so  they  will  be  found  upon  meas- 
urement too  large,  generally  a  little  thicker,  but  so  slight  as 
not  to  be  observable  unless  a  person  had  a  genuine  coin  to 
compare  them  with  or  an  accurate  measuring  instrument. 


COUNTERFEITING.  197 

Most  counterfeit  silver  coins  are  made  from  molds,  as  it  is  a 
much  cheaper  process.  They  nearly  always  lack  weight  and 
will  not  bear  close  inspection,  the  milling,  reeding  and  general 
appearance  usually  being  bad. 

Counterfeiters  of  coin  use  a  number  of  different  metals  for 
their  nefarious  purposes.  The  principal  are  platinum,  brass, 
copper,  silver,  zinc,  lead,  antimony,  aluminum,  type  metal  and 
compositions  of  these.  Platinum  is  a  very  heavy  metal  and 
hence  makes  a  very  dangerous  counterfeit.  The  weight  can 
be  gotten  correct  and  then  if  the  gold  plating  is  nicely  done  it 
is  a  difficult  counterfeit  to  detect.  Some  platinum  counter- 
feits have  been  found  over-weight.  When  the  plating  wears 
off  from  use,  which  it  will  soon  do  on  the  edges,  the  metal  be- 
neath shows  through  and  the  fraud  is  plain.  The  most  dan- 
gerous composition  for  counterfeiting  gold  coin  is  gold,  silver 
and  copper.  This  makes  a  low  grade  gold  and  will  not  stand 
the  acid  test.  The  U.  S.  standard  is  900  fine  or  £  pure  gold, 
,o  alloy ;  these  counterfeits  run  from  400  to  800  fine. 

A  very  fine  and  dangerous  counterfeit  of  the  silver  dollar  is 
made  from  antimony  and  lead.  They  have  a  splendid  ring, 
fine  appearance,  are  heavily  silver-plated  and  fall  but  a  little 
below  the  standard  in  weight.  They  are  well  calculated  to  de- 
ceive. Most  counterfeit  silver  coins  are  made  from  type 
metal,  lead,  zinc,  etc.,  and  are  much  below  the  required  weight, 
unless  they  are  largely  increased  in  thickness. 

A  common  practice  of  rogues  now  is  to  abstract  in  some 
way  the  metal  from  a  genuine  coin.  This  is  mostly  confined 
to  the  larger  gold  coins  and  the  processes  are  known  as  sweat- 
ing, plugging  and  filling.  . 

Sweating  is  removing  a  portion  of  the  gold  from  the  sur- 
face. This  was  originally  done  by  placing  a  quantity  of  the 
coins  in  a  bag  together  and  shaking  them  until  the  friction 
would  abrade  a  portion  of  each  in  the  form  of  fine  dust.     A 


198  HOW   TO   PROCEED. 

common  method  now  is  the  acid  bath.  The  edges  are  some- 
times filed,  too,  in  the  milling,  the  quantity  of  dust  obtained 
in  this  way  from  a  large  number  of  coins  being  considerable. 
The  coin  is  reduced  on  the  average  by  these  processes  from  2o 
to  J. 

Plugging  is  done  by  boring  a  hole  in  the  coin  and  filling 
the  place  with  some  base  metal.  The  place  is  then  covered 
with  gold,  the  reeding  restored  (it  is  generally  near  the  edge) 
and  the  coin  passes  current,  probably,  till  the  plating  wears  off 
the  plug. 

Filling  is  usually  done  by  splitting  or  sawing  the  coin 
through  into  two  thin  pieces,  removing  the  entire  interior  of 
the  coin,  the  sides  being  left  sometimes  as  thin  as  paper,  filling 
the  empty  inside  with  some  base  metal,  joining  the  pieces  to- 
gether again,  restoring  the  milling  and  it  looks  as  good  as  ever. 
If  the  filling  is  done  with  platinum  the  weight  is  the  same  as 
the  genuine.  Coins  by  this  process  lose  5  of  their  value,  if  it  is 
cleverly  done. 

TO   DETECT   COUNTERFEIT   COIN. 

There  are  different  ways  of  detecting  counterfeit  coin.  The 
most  important  points  to  be  observed  are  the  impress,  size, 
weight,  ring,  and  general  appearance.  It  may  be  laid  down  as 
an  almost  infallible  rule  that  if  the  three  points  are  taken, 
weight,  diameter  and  thickness,  it  will  be  impossible  for  any 
counterfeiter  to  comply  with  all  these  tests  without  using  gen- 
uine metal. 

Any  one  who  handles  much  coin,  then,  should  supply  him- 
self with  a  small,  but  accurate  and  delicately  balanced  pair  of 
scales  and  a  little  instrument  for  measuring  diameter  and 
thickness.  These  little  instruments  have  been  made  with 
great  accuracy,  having  slots  of  exactly  the  proper  size  for  the 
principal  coins.  It  is  necessary  then  to  know  the  exact  proper 
weight  of  each  denomination  which  follows: 


\ 

COUNTERFEITING. 


199 


GENUINE    GOLD    COINS. 

Double  Eagle — $20.  Weight  516  grains,  900  fine,  21.19 
carats. 

Eagle — $10.     Weight  258  grains,  900  fine,  21.19  carats. 

Half  Eagle — $5.     Weight  129  grains,  900  fine,  21.19  carats. 

Quarter  Eagle — %2l/2.  Weight  64.5  grains,  900  fine,  21.19 
carats. 

Dollar.     Weight  25.8  grains,  900  fine,  21.19  carats. 

GENUINE   SILVER   COINS. 


Denominations. 

Coinage 

com- 
menced. 

Coinage 
ceased. 

Standard 
Weight, 
grains. 

Amount  for  which 
a  Legal  Tender. 

Standard  Dollars, 
Dollars, 
Half  Dollars, 
Quarter  Dollars, 
Twenty  Cents, 
Dimes, 
Half  Dimes, 
Three  Cents, 

1878 
1793 
1793 
1796 
1875 
1796 
1793 
1851 

i873 

1878 

1873 
1873 

412.5 
412.5 
192.9 
96.45 
77.16 
38.58 
19.29 
11.52 

Unlimited. 
Unlimited. 
Ten  Dollars. 
Ten  Dollars. 
Five  Dollars. 
Ten  Dollars. 
Five  Dollars. 
Five  Dollars. 

The  trade  dollar  weighed  420  grains.      It  was  not  a  legal 
tender.     They  have  now  been  called  in  and  redeemed. 

MINOR   COINS   OF   THE    UNITED   STATES. 


Denominations. 


Coinage    :    Coinage 
com-  ceased, 

menced. 


Standard 
Weight, 
grains. 


Amount  for  which 
a  Legal  Tender. 


Deviation 
allowed  in 
Coinage, 
in  grains. 


Five  Cents, 
Three  Cents, 
Two  Cents, 
Cents, 
Half  Cents, 


1866 
1865 
1864 
1793 
1793 


1857 


77.16 
80. 


48. 


Twenty-five  Cents.  ; 
Twenty-five  Cents,  j 
Twenty-five  Cents.  I 
Twenty-five  Cents. 
Not  a  legal  tender. 


With  these  weights  and  an  instrument  for  measuring  the. 
diameter  and  thickness  of  coins  no  one  need  ever  be  imposed 
upon.     But  if  it  is  desired  to  carry  the  test  still  further  we  give 


200  HOW  TO   PROCEED, 

the  acid  test  used  at  the  United  States  Mint.     This  in  itself 
will  detect  almost  any  counterfeit  in  existence. 

U.  S.  MINT  TEST  FOR  GOLD  AND  SILVER. 
In  using  this  acid  test  always  apply  it  as  near  the  edge  as 
possible,  as  the  coin  is  more  worn  there.  If  the  coin  is  new 
and  not  worn  at  all  always  scrape  it  a  little  before  using,  and 
always  do  this  with  heavily  plated  coins.  If  the  coin  is  gen- 
uine the  acid  will  have  no  effect  upon  it ;  if  it  is  counterfeit  the 
color  will  change  instantly.  Be  careful  in  handling  the  acid 
not  to  get  any  of  it  on  the  hands. 

TEST   FOR   GOLD. 

Strong  Nitric  Acid,  6%  drachms;  Muriatic  Acid,  %  drachm, 
or  15  drops;  Water,  5  drachms. 

TEST  FOR   SILVER. 

24  grains  Nitrate  of  Silver;  30  drops  Nitric  Acid;  1  ounce 
Water. 

This  acid  test  alone  will  be  sufficient  in  ninety-nine  cases 
out  of  a  hundred  to  detect  the  presence  of  base  metal,  and 
taken  in  connection  with  the  weight  and  measurement  of  di- 
ameter and  thickness  becomes  absolutely  infallible. 

COUNTERFEIT    CANADIAN    NOTES. 

i's  D.  Dominion  of  Canada. — This  counterfeit  is  dated 
Ottawa,  July  1,  1870,  and  made  payable  at  Toronto.  A  white 
streak  extends  from  the  ear  to  the  chin  of  the  portrait  of 
Jacqus  Cartier,  and  the  portrait  is  otherwise  bad.  Lathe-work 
around  1  on  right  of  note  is  not  good,  lines  can  not  be  traced. 

i's  A.  Dominion  of  Canada.  New  Issue. — A  bad  coun- 
terfeit that  should  not  deceive  any  one,  looking  like  a  rather 
coarse  wood-cut. 

i's.  Union  Bank  of  P.  E.  Island,  Charlottetown,  P.  E.  I. — 
A  bad  photographic  counterfeit,  dated  1st  of  Jam,  1872,  and 


'      COUNTERFEITING.  SOI 

numbered  30,252.  The  printing  is  bad  and  the  whole  thing 
looks  blurred. 

2's  C.  Dominion  of  Canada.  New  Issue. — This  counter- 
feit is  dated  June  1st,  1878,  and  payable  at  Toronto.  A  rather 
dangerous  counterfeit.  Following  defects  will  identify  it: 
Lord  Dufferin's  portrait  is  coarsely  engraved  and  has  bad  ex- 
pression. The  i's  in  the  imprint,  British  American  Bank  Note 
Co.,  are  not  dotted.  Ink  in  numbers  is  brick  red  instead  of 
bright  carmine  as  in  genuine. 

2's  B.  Dominion  of  Canada. — This  is  a  dangerous  coun- 
terfeit note  on  Dominion  of  Canada,  payable  at  Montreal.  It  is 
well  engraved,  the  portrait  of  Lord  Dufferin  being  almost  equal 
to  the  genuine.  The  paper  is  a  light  yellowish  cast,  which  is 
the  best  key  to  this  counterfeit.  In  words,  "  For  Minister  of 
Finance,"  the  final  e  is  a  little  larger  than  the  other  letters. 
Notes  of  this  issue  should  be  scrutinized  very  closely. 

2's  A.  Union  Bank  of  P.  E.  Island,  Charlottetown,  P.  E. 
I. — A  bad  photographic  counterfeit,  dated  1st  of  Jan.,  1872. 
Its  brownish  color  renders  it  easy  of  detection.  Ink  on  face 
of  note  is  very  poor. 

2's  A.  Same  bank  as  last.- — This  is  a  very  imperfect  coun- 
terfeit of  the  new  issue,  dated  March  1,  1875.  It  is  too  short 
and  is  very  coarsely  engraved,  looking  like  a  wood-cut.  The 
imprint  of  the  British  American  Bank  Note  Co.  is  omitted  en- 
tirely from  the  lower  border  of  the  note.  Lathe-work  is  very 
bad. 

2's.  Bank  of  Toronto. — This  is  an  altered  note  of  the  In- 
ternational Bank  of  Canada,  Toronto,  which  is  dead.  The 
title,  "Bank  of  Toronto,"  has  been  rather  skillfully  pasted 
over  the  title  of  the  defunct  bank,  and  on  some  of  the  notes 
seen,  the  signatures  of  the  officers  of  the  failed  bank  have 
been  erased  and  the  signatures  of  the  officers  of  the  solvent 
bank  written  in.     The  date  is  Sept.  15,  1858,  the  same  date  of 


202  HOW   TO    PROCEED. 

the  notes  of  the  failed  bank.  The  alteration  can  easily  be  seen 
by  holding  the  note  up  to  the  light.  To  obviate  this  a  strip  of 
paper  is  sometimes  pasted  over  the  back  of  the  note  as  though 
to  mend  it.     . 

4's  B.  The  Dominion  Bank,  Toronto,  Ont. — This  counter- 
feit is  one  of  the  old  issue  and  is  dated  Feb.  i,  1871.  The 
cashier's  signature  has  been  engraved  on  the  note,  whereas  it  is 
written  on  the  genuine.  A  white  line  separates  the  portrait  of 
Prince  Arthur  from  the  back  ground  work  at  the  top,  which 
does  not  appear  in  the  genuine. 

4's  C.  Bank  of  British  North  America,  St.  John,  N.  B—  A 
bad  photographic  counterfeit,  No.  74,981. 

4's.  City  Bank,  Montreal,  P.  Q. — This  is  a  very  bad  coun- 
terfeit, redeemable  in  Montreal;  paper  thin  and  poor;  ink  bad; 
lathe-work  imperfect;  bank  out  of  existence. 

4's.  Bank  of  Upper  Canada,  Toronto,  Ont. — A  clever  al- 
teration from  the  notes  of  the  failed  Bank  of  Western  Canada, 
Clifton.  Western  and.  Clifton  are  erased  and  Upper  and 
Toronto  substituted.     Done  with  acid  and  by  pasting. 

5's  C.  Canadian  Bank  of  Commerce,  Toronto,  Ont. — A 
bad  counterfeit  of  the  old  issue,  dated  May  1,  1871.  Portrait 
and  other  parts  coarsely  engraved.  Cashier's  signature  is  en- 
graved on  counterfeit ;  written  on  genuine. 

5's  A.  Bank  of  British  North  America,  Quebec. — A  bad 
photographic  counterfeit  of  the  old  issue,  dated  Nov.  22,  1871. 
The  printing  and  ink  are  bad.  The  notes  as  far  as  seen  are 
numbered  44,490. 

5's.  Bank  of  British  North  America,  Kingston,  Ont.— A 
very  clever  and  quite  dangerous  counterfeit  that  had  an  exten- 
sive circulation.  It  is  of  the  old  issue,  dated  May  the  1st,  1875. 
Not  many  genuine  notes  of  this  issue  are  in  existence  and  the 
numbers  are  a  pretty  good  guide.  The  genuine  notes  are  all 
numbered  from  30,001  to  36,000  inclusive.     Most  counterfeits 


COUNTERFEITING.  203 

bear  other  numbers.  The  shading  is  entirely  omitted  from 
the  scroll-work  in  the  border  of  the  conterfeit ;  in  the  gen- 
uine it  is  fine  and  clear. 

5's  D.  Bank  of  British  North  America,  Montreal,  P.  Q. — 
A  fair  counterfeit  of  the  old  issue.  Genuine  notes  are  dated 
3d  of  July,  1877;  on  counterfeit  the  month  date  is  entirely 
omitted.  The  vignettes  are  badly  engraved,  as  also  the  im- 
print of  British  American  Bank  Note  Co.,  in  border,  upper  left. 

Another  counterfeit  of  this  same  issue  is  out,  under  date  of 
5th  of  July,  1877.  It  is  evidently  made  from  the  same  plate 
as  the  other,  as  they  are  exactly  alike  in  all  other  respects. 

5's.  Bank  of  Montreal. — A  counterfeit  of  the  old  issue, 
dated  1858,  Sept.  1.  Not  very  dangerous.  Large  panel  in 
center  bears  the  words  Twenty -Jive  Shillings,  Cy.,  and  Five 
Dollars  in  lower  left  of  note.  Date  of  issue  and  numbers  are 
in  blue  ink.  Two  vignettes  in  upper  right  and  upper  left. 
Quebec  is  spelled  Quebeck  in  three  places  in  blue  ink. 

5's  E.  Bank  of  Toronto,  Toronto,  Ont. — A  very  bad  and 
easily  detected  photographic  counterfeit  of  the  Port  Hope  is- 
sue; signed  .Win.  Gooderham,  President. 

The  Peterboro  issue  has  a  similar  counterfeit. 

5's  A.  Union  Bank  of  P.  E.  Island,  Charlottetown,  P.  E. 
I. — A  badly  faded  and  very  defective  photographic  counterfeit 
that  ought  not  deceive  any  one. 

5's  B.  Bank  of  Novia  Scotia,  Halifax,  N.  S. — Another 
poor  photographic,  pen  and  ink  note,  dated  Halifax,  N.  S., 
July  5,  1887.     It  is  numbered  126,304. 

5's  B.  Maritime  Bank  of  St.  Johns,  N.  B. — A  very  bad 
counterfeit.  This  bank  has  failed,  and  all  notes  upon  it  should 
be  promptly  refused. 

io's.  Bank  of  British  North  America,  Ottawa,  Ont. — A 
bad  photographic  counterfeit  No.  16,279.  This  note  will  de- 
ceive no  one;  general  appearance,  ink  and  all  bad. 


204  HOW  TO   PROCEED. 

io's  D.  Canadian  Bank  of  Commerce,  Toronto,  Ont. — Very 
dangerous,  has  deceived  those  accustomed  to  handling  money. 
Wm.  McMaster,  President;  W.  Cooke,  Cashier.  Dated  May  i, 
1 87 1.  Engraving  is  very  good,  but  a  little  coarser  than  in  the 
genuine,  especially  head  of  lion.  Blue  numbers  are  a  little 
lighter  than  in  genuine.  The  title  "  Bank  of  Commerce,"  is 
poorly  shaded,  being  coarse  and  scratchy.  L,athe-work  is  fine. 
The  green  ink  on  back  is  a  trifle  too  light,  and  the  lathe-work 
is  not  good.     Paper  too  thin. 

io's  A.  Ontaria  Bank,  Bowmansville,  Ont. — This  is  a 
counterfeit  of  the  old  issue,  dated  Nov.  1,  1870.  It  is  a  little 
shorter  than  the  genuine.  Vignette  of  Woodman  badly  en- 
graved, and  imprint  of  Bank  Note  Co.  defective. 

There  is  another  counterfeit  of  this  same  issue,  some  of 
which  do  not  bear  the  imprint  of  the  British  American  Bank 
Note  Co.     These  notes  both  look  bad. 

io's.  Merchants'  Bank  of  Canada. — A  fair  photographic 
counterfeit,  numbered  083,993  in  black.  The  best  means  of 
detecting  it  is  by  the  yellowish  color  of  the  green  on  back, 
which  seems  to  have  been  put  on  with  a  brush. 

io's.  Merchants'  Bank  of  Halifax,  Halifax,  N.  S. — A  fair 
photo-lithographic  counterfeit,  of  the  old  issue,  dated  1st  of 
Jan.,  1874.  When  new  these  notes  are  dangerous,  but  a  little 
handling  gives  them  a  blurred  appearance. 

io's  A.  La  Banque  Nationale,  Quebec.  P.  Q. — A  very  poor 
counterfeit,  dated  April  28,  i860.  P  in  Pres't  is  directly  over 
D  in  Z?ix,  on  genuine  at  bottom  of  note,  but  in  counterfeit  P 
is  over  ix. 

io's.  City  Bank  of  Montreal,  Montreal,  P.  Q. — The  word 
Parliament  is  spelled  Parliment  on  this  poor  counterfeit. 

io's  A.  Peoples'  Bank  of  New  Brunswick,  Frederickton, 
N.  B. — A  very  poor  and  easily  detected  photographic  counter- 
feit. 


COUNTERFEITING.  205 

io's  A.  Maratime  Bank,  St.  Johns,  N.  B. — A  bad  photo- 
graphic pen  and  ink  counterfeit,  dated  Oct.  5,  1881.  Bank 
failed.     Refuse  all  notes  on  this  bank. 

io's.  Dominion  of  Canada. — A  raised  counterfeit,  done  by 
taking  a  one  dollar  note  and  scraping  it  with  a  knife  and  fill- 
ing in  with  pen  and  ink.  Refuse  all  notes  of  this  kind  be- 
cause there  are  no  genuine  $10  Dominion  of  Canada  notes. 


This  completes  the  list  of  counterfeit  notes  upon  banks  in 
the  United  States  and  Canada,  and  we  believe  by  a  careful  study 
of  the  descriptions  given,  that  no  one  need  ever  be  deceived 
by  a  bad  note.  This  list  is  designed,  of  course,  more  especi- 
ally for  reference.  If  you  suspect  a  note  of  being  bad,  notice 
first  whether  it  is  a  National  Bank  note,  a  United  States  note 
or  a  silver  certificate.  Then  turn  to  the  proper  list,  where- 
ever  it  belongs,  and  if  you  can  not  find  it  in  the  list  you  may 
know  it  is  good.  If  you  find  it  in  the  list  then  examine  closely 
to  see  if  it  bears  the  defects  there  described,  and  thus  you  can 
be  absolutely  certain.  A  little  practice  in  examining  and  com- 
paring notes  of  different  issues  will  soon  make  any  one  famil- 
iar with  the  general  principles  of  detecting  counterfeit  money. 


CHAPTER  VI. 

DETECTIVE   WORK. 

WE  consider  it  a  vain  and  fruitless  task  to  attempt  to 
tell  any  one  how  to  become  a  detective.  If  a  man 
has  not  some  natural  adaptation  to  the  business  he 
will  never  succeed  in  it,  however  carefully  instruct- 
ed he  may  have  been.  There  is,  perhaps,  no  other  profession, 
or  calling,  that  requires  so  much  versatility  of  mind  and  vari- 
ety of  accomplishment.  The  detective  must  be  able  to  adapt 
himself  to  all  circumstances  of  time,  place  and  society.  He 
should  be  able  to  talk  intelligently  upon,  and  show  some  de- 
gree of  familiarity  with  all  trades  and  professions.  There  is 
no  field  of  knowledge  that  may  not  at  some  time  become  prac- 
tically useful  to  him.  He  must  be  all  things  to  all  men;  a 
gentleman  among  gentlemen ;  a  tough  among  bummers.  He 
must  be  as  familiar  with  the  slang  of  thieves  and  low  people 
as  he  is  with  the  elegant  phrases  of  polite  society. 

This  variety  of  accomplishment  indicates  the  same  variety 
in  character  of  work  to  be  done.  It  is  the  character  of  the 
work  that  necessitates  so  great  versatility  of  mind  and  scope 
of  knowledge.  No  two  cases  of  detective  work  are  alike. 
They  are  frequently  similar,  but  never  absolutely  alike.  And 
it  is  the  little  differences  that  give  to  each  one  its  peculiar  in- 
dividuality and  require  for  it,  perhaps,  an  entirely  different 
method  of  treatment  from  another  that  seems  very  much 
like  it. 

These  observations  lead  us  back  to  our  first  statement,  that 
it  is  a  vain  and  fruitless  task  to  attempt  to  teach  any  one  how 
to  become  a  detective.      The  best  that  can  bq  done  is  to  lay 

206 


DETECTIVE  WORK.  207 

down  a  few  general  principles,  explain  the  different  classes  of 
work  and  let  each  one  work  out  his  success  under  the  guid- 
ance of  that  master  hand  Experience. 

The  first  requisite  to  success,  then,  is  the  detective  instinct. 
This  no  teacher  or  book  can  -give  to  any  man.  It  must  be 
born  in  him.  We  believe,  however,  that  almost  every  one 
possesses  some  degree  of  the  detective  instinct ;  in  some  it  is 
very  largely  developed ;  in  others  to  a  very  small  degree. 

The  course  of  training  to  which  the  young  detective  may 
subject  himself  will  have  much  to  do  with  developing  his  nat- 
ural detective  faculty.  The  best  schooling  and  the  most 
practical,  is  the  constant  advice  and  companionship  of  an  old 
and  experienced  detective.  This  is  better  than  all  the  books 
that  ever  were  written. 

One  of  the  first  requisites  of  a  good  detective  is  perfect 
self-control.  This  should  be  both  mental  and  physical,  as  far 
as  possible.  Control  of  the  mind  should  extend  to  the  sup- 
pression of  the  passions,  anger,  joy,  fear;  to  the  habit  of  com- 
posed and  rapid  thought  under  exciting  and  trying  circum- 
stances; to  mental  versatility  in  diverting  attention  from  a 
danger  point,  or  leading  the  conversation  skillfully  and  with- 
out apparent  design  to  a  desired  subject  and  eliciting  informa- 
tion thereon.  Physical  control  should  extend  principally  to 
facial  expression,  although  cases  frequently  arise-  in  which 
many  physical  infirmities  must  be  simulated.  The  face  must 
sometimes  express  joy  and  delight  when  the  real  feeling  of  the 
mind  is  one  of  disgust  and  aversion.  Intense  hate  must  some- 
times frown  from  the  face  when  the  real  feeling  behind  it  is 
that  of  admiration  or  love-  Words,  conduct  and  facial  ex- 
pression must  be  consistent,  otherwise  a  charge  of  insincerity 
will  be  preferred  by  people  whose  observation  would  not  ordi- 
narily be  considered  acute.  In  other  words,  a  detective  should 
not  talk  hate  from  a  countenance  beaming  with  joy  and  de- 


208  HOW   TO    PROCEED. 

light;  he  should  not  voice  his  admiration  when  every  linea- 
ment of  his  face  shows  disgust  and  contempt. 

A  detective  must  have  patience  to  await  results. 

He  must  have  physical  endurance  to  undergo  fatigue  and 
hardships. 

He  must  have  a  keen  observation  for  faces  and  physical 
differences. 

He  must  cultivate  the  ability  to  read  character  in  the  human 
face. 

Detective  work  proper  has  been  divided  into  classes.  We 
do  not  consider  that  this  classification  is  particularly  valuable, 
but  as  it  facilitates  explanation  and  perhaps  covers  the  field, 
we  give  it : 

i.  The  first  and  least  difficult  class  of  detective  work  is 
shadowing.  By  this  is  meant  watching  some  person  in  his  every 
movement,  never  for  a  moment  losing  sight  of  him.  It  is 
tedious  and  tiresome  work  and  requires  endurance,  shrewd- 
ness and  quickness  of  action.  The  proper  way  for  a  young 
detective  to  train  himself  in  this  class  of  work  is  to  pick  out 
some  stranger  and  follow  him,  taking  great  care  that  he  does 
not  discover  what  you  are  doing.  A  number  of  artificial  cases 
will  soon  teach  the  learner  the  difficulties  to  be  overcome  and 
how  best  to  do  it.  Never  lose  sight  of  your  man.  Always 
keep  your  eyes  on  him,  while  not  appearing  to  do  so.  Do  not 
follow  too  close,  neither  too  far  away.  Always  be  near  enough 
to  distinguish  any  motion  or  sign  he  may  make  to  a  confederate. 
When  on  an  actual  case,  and  also  when  practicing,  write  out  a 
full  and  complete  account  of  every  movement  of  the  person 
watched.  If  the  movements  are  complicated,  notes  may  be 
taken  as  you  go  along  and  written  out  in  full  after  the  watch  is 
over.  In  actual  business  this  has  to  be  done  for  the  satisfac- 
tion of  your  employer  and  it  should  be  done  in  practice  to  pre- 
pare for  business.     While,  as  we  have  said,  this  class  of  work 


DETECTIVE  WORK.  20Q. 

is  usually  placed  at  the  head  of  the  list  as  the  simplest  and  eas- 
iest, it  is  really  sometimes  the  most  difficult. 

2.  The  class  of  work  usually  placed  next,  though  we  con- 
sider it  the  most  difficult  of  all,  is  that  of  ingratiating  yourself 
into  the  good  graces  of  people  whom  you  suspect  and  obtain- 
ing from  them  the  information  you  want.  A  detective  when 
performing  this  kind  of  work  is  sometimes  called  a  "roper," 
though  this  term  has  no  general  use  in  the  profession.  This 
work  is  extremely  difficult  and  requires  a  splendid  knowledge 
of  human  nature  and  the  ability  to  read  dispositions  from  the 
countenance  and  other  external  appearances.  The  identity  of 
a  detective  must  be  absolutely  concealed,  otherwise  he  could 
not  make  a  beginning  in  this  class  of  work.  To  prepare  for 
this  work,  study  human  faces,  and  read  characters  by  facial  ex- 
pression and  then  verify  your  results  by  becoming  acquainted 
with  the  party.  Look  out  for  the  weak  points — if  you  obtain 
anything  from  a  man  by  strategy,  it  will  be  by  attacking  his 
weak  point.  Every  man  has  a  weakness.  Flattery  catches 
most  men,  but  great  caution  must  be  exercised  in  regard  to 
the  subject  or  point  upon  which  it  is  attempted  and  the  man- 
ner in  which  it  is  done.  Here  is  where  the  study  of  human 
nature  comes  in.  Some  men  will  stand  broad  and  fulsome 
flattery;  with  others  it  must  be  a  delicate  insinuation.  It  may 
be  a  man's  physical  appearance,  or  his  elegant  dress,  or  his  po- 
lite manners ;  it  may  be  his  intelligence  or  education ;  it  may 
be  his  self-supposed  lack  of  susceptibility  to  flattery,  that  con- 
stitutes his  weak  point  and  that  he  may  be  drawn  toward  you 
upon.  The  principal  object  of  this  is  to  cause  the  party  to  feel 
kindly  toward  you — then  the  battle  is  half  won. 

In  this  class  of  work,  never  hasten,  never  ask  pointed  or 
leading  questions,  bide  your  time,  letting  things  take  their  nat- 
ural and  easy  course.  If  you  are  skillful  you  can  make  it  easy 
for  him  to  tell  what  you  want  to  know  by  directing  the  con- 
14 


2IO  HOW    TO    PROCEED. 

versation  properly.  Sometimes,  when  a  crime  is  to  be  un- 
earthed, the  detective,  after  becoming  thoroughly  acquainted 
with  the  one  suspected,  becomes  confidential  and  secretly  ad- 
mits some  act  in  his  own  life  of  a  criminal  character.  This 
often  secures  a  return  of  confidence  from  the  other  side  and 
reaches  the  desired  end.  You  must  know  the  business  of  oth- 
er people  while  they  do  not  know  yours.  If  the  person  should 
become  suspicious  of  you,  never  under  any  circumstances  be- 
tray the  fact  that  you  know.it,  but  do  all  you  can  in  an  indirect 
way  to  overcome  it.  Retrace  your  steps  and  reestablish  your- 
self in  his  confidence  if  possible,  but  if  it  is  plain  that  his  con- 
fidence in  you  can  not  be  restored,  quietly  retire  from  the  case, 
still  not  showing  by  sign  or  word  that  you  knew  he  suspected 
you. 

This  is  work  that  requires  a  vast  fund  of  patience  and  per- 
sistence. Never  say  fail.  If  thugs  and  toughs  suspicion  and 
threaten  you,  stand  firm,  cool  and  collected,  keeping  your  pres- 
ence of  mind,  and  prepared  for  the  worst. 

3.  There  really  is  no  other  class  of  detective  work  proper, 
but  there  is  other  work  that  detectives  do  and  it  is  called  by 
some,  investigating.  This  is  usually  done  without  any  at- 
tempt to  conceal  the  identity  of  the  investigator.  It  is  done 
by  interviewing  everybody  who  may  possibly  know  anything 
about  the  subject  you  are  investigating.  The  principal  thing 
to  be  learned  is  how  to  extract  information  from  people  by 
plying  them  with  questions.  Do  not  imagine  that  this  is  easy 
at  all  times.  It  may  be  very  easy  and  it  may  be  very  difficult. 
It  requires  a  great  deal  of  tact  in  framing  the  questions,  also 
in  observing  the  replies,  to  note  whether  the  party  is  conceal- 
ing anything  or  possesses  other  information  which  a  different 
form  of  question  will  bring  out.  Watch  out  for  evasive  re- 
plies— those  that  tell  the  truth,  but  not  enough  of  it  to  be  of 
value  and  seem  to  be  guarding  a  point.     A  successful  investi- 


DETECTIVE  WORK.  /  211 

gator  ought  to  be  well  or  fairly  well  educated,  must  have 
shrewdness  and  knowledge  of  human  nature,  and  must  be 
bold  and  venturesome.  This  work  really  resembles  more  the 
fine  point-picking  of  an  attorney's  cross-examination  than  de- 
tective work,  yet  detectives  have  it  to  do.  Years  of  expe- 
rience in  this  field  will  be  required  to  make  one  thoroughly 
proficient  and  then  there  is  always  something  to  learn. 

GENERAL    REMARKS. 

It  is  not  every  detective  who  is  good  in  all  branches  of  the 
work.  It  is  plain  that  a  rough,  uneducated  and  uncouth  man 
could  never  succeed  in  ingratiating  himself  into  high-toned  so- 
ciety, still  he  might  be  well  adapted  to  other  lines  of  work. 
He  could  go  into  a  barroom  among  toughs,  mingle  with  them, 
cultivate  their  acquaintance,  talk  of  his  escapades  and  perhaps 
get  information  of  some  desperate  crime  that  had  been  com- 
mitted or  that  they  were  plotting.  It  should  be  observed  here, 
that  in  cases  of  this  kind  the  detective  should  always  apprise 
the  officers  or  his  partner  of  what  he  is  about,  so  that  if  an  ar- 
rest is  made  he  will  not  be  taken  with  the  others,  or  at  least 
there  should  be  an  understanding  so  as  to  avoid  difficulty. 

A  society  gentleman,  accustomed  to  wear  fine  clothes,  and 
familiar  with  social  rules  and  customs,  is  better  adapted  for 
work  among  that  class  of  people.  Neither  does  every  detective 
do  good  work  of  all  kinds  in  the  same  grade  of  society.  A 
good  shadow  may  be  a  very  poor  investigator,  and  may  never 
be  able  to  learn  it  so  as  to  make  a  success  of  it.  So  that  it 
frequently  happens  that  different  men  work  different  features 
of  the  same  case. 

One  of  the  best  schoolings  for  a  detective  is  the  police 
court  of  a  large  city.  Here  the  criminal  riff-raff  of  creation 
congregate  and  their  faces  may  be  studied  and  features  and 
peculiarities  fixed  in  the  mind.  Learn  the  peculiar  form  of 
crime  of  each  and  how  he  works  and  where  he  haunts.     A 


212  HOW  TO   PROCEED. 

good  and  cheap  way  to  fix  the  faces  and  features  of  these  peo- 
ple in  the  mind  is  to  procure  some  book  containing  reliable 
portraits  of  them. 

In  regard  to  books  containing  portraits  we  desire  to  say, 
however,  that  no  one  is  worth  anything  after  it  is  two  or  three 
years  old.  Five  years  will  almost  suffice  to  change  the  whole 
criminal  fraternity  of  the  country.  New  crooks  are  coming  up 
all  the  time  and  old  ones  are  passing  away,  either  settled  in 
some  prison  or  passed  over  to  that  Court  from  which  there  is 
no  appeal.  The  dangers  and  hardships  of  the  profession  make 
the  average  life  of  the  criminal  short.  Of  course  we  all  know 
of  some  who  have  grown  old  and  gray  in  crime,  yet  they  are 
the  exceptions.  So  that  the  detective  who  expects  to  do  any 
thing  with  criminal  work  must  keep  himself  posted  all  the 
time.  He  must  know  the  criminals  of  the  country.  The 
books  and  photographs  are  good  in  their  way,  but  should  cer- 
tainly be  supplemented  if  possible  by  knowledge  obtained 
from  actual  contact.  There  is  no  better  place  for  obtaining 
this  than  about  a  police  court.  Another  class  of  education 
also  important  can  be  gained  by  attending  great  criminal 
trials.  Listen  carefully  to  the  evidence,  observe  how  it  is 
drawn  out  by  the  attorneys,  study  motives,  theories  and  de- 
fenses of  crimes  and  great  profit  will  be  derived. 

Arming  men  and  placing  them  to  guard  a  coal  mine  or  a 
railroad  is  not  detective  work,  although  some  agencies  in  the 
country  are  engaged  in  doing  that  business.  If  a  man  wants 
to  be  a  detective  he  wants  other  training  than  that.  A  man 
can  not  learn  any  thing  about  detective  work  by  being  put  in 
uniform  and  assigned  to  patrol  a  beat.  Detective  work  can 
not  be  done  in  uniform. 

The  greatest  secrecy  should  be  observed  at  all  times  by 
those  employed  on  a  case.  No  one  of  the  celebrated  detective 
force  of  Paris  is  permitted  to  know  what  any  other  is  doing 


DETECTIVE  WORK.  213 

unless  two  should  be  assigned  to  a  case  together  and  not  al- 
ways then.  The  custom  of  running  to  the  newspapers  with 
every  little  case  that  comes  up  is  very  detrimental  to  the  ser- 
vice and  results  from  a  desire  for  a  little  cheap  notoriety. 

To  the  public  at  large,  too,  we  would  say,  if  you  meet  with 
a  loss,  have  a  watch  or  purse  stolen,  do  not  raise  a  big  fuss 
about  it  but  go  quietly  to  the  authorities  or  to  some  private 
detective  in  whom  you  have  confidence  and  detail  the  circum- 
stances of  the  loss,  and  any  evidence  or  pointers  you  may  have 
and  set  him  quietly  to  work  on  the  case.  The  chances  of  dis- 
covering the  criminal  and  bringing  him  to  justice  are  much 
greater  than  if  a  big  noise  were  made  about  it.  If  a  person 
becomes  a  fugitive  from  justice  then  of  course  it  is  proper  to 
publish  him  in  some  paper  of  general  circulation  devoted  to 
criminal  matters,  like  the  International  Detective. 

These  hints,  we  believe,  will  be  sufficient  to  put  all  bright 
young  men  on  the  track  and  they  will  be  able  to  work  out 
their  own  success. 

As  an  illustration  of  practical  detective  work  we  append 
hereto  the  account  of  the  method  of  working  out  to  successful 
issue  one  of  the  greatest  cases  that  ever  occurred  in  this 
country.  It  is  known  among  secret  service  men  and  in  the 
courts  as  "The  Oshkosh  Case"  and  our  object  in  inserting  it 
here  is  to  make  it  a  practical  illustration  of  the  principles  laid 
down  in  the  foregoing  pages.  No  attempt  will  be  made  to 
produce  startling  situations  or  thrilling  climaxes.  The  plain 
historical  facts  contain  enough  of  the  sensational.  The  ac- 
counts will  show  how  a  great  case  was  worked  up,  the  theories 
advanced,  the  plans  adopted  to  obtain  certain  information,  the 
schemes  to  entrap  villains,  the  sensitiveness  of  instinct  in  ap- 
prehending danger,  and  all  the  multifold  moves  on  the  great 
chessboard  of  human  action  to  secure  the  triumph  of  right  and 
discomfiture  of  wrong.     One  of  the  best  features  of  this  case  is 


214  HOW  TO   PROCEED. 

its  truth.  Ever}-  point  of  the  story  can  be  verified,  as  we  give 
names,  dates  and  places.  There  are  many  fine  points  of  detec- 
tive work  in  it,  and  it  should  be  carefully  studied.  Captain  J. 
C.  Grannan,  Manager  of  the  Grannan  Detective  Bureau,  was 
the  principal  actor  on  the  side  of  law  and  justice,  and  he  con- 
siders it  one  of  the  greatest  cases  he  was  ever  engaged  in  and 
one  of  the  most  important  that  has  ever  occurred  in  this 
country.  We  commend  it  to  the  careful  study  of  all  who  are 
interested  in  detective  work. 


Trie  OSHKOSH  esse. 


FATAL   FLAMES. 

IN  Oshkosh,  Wis.,  there  is  no  better  or  more  favorably 
known  family  than  the  Paiges.  Simon  B.  Paige,  in  1881, 
was  a  millionaire.  He  boarded  at  the  aristocratic  Beck- 
with  House  with  his  accomplished  wife,  and  they  had 
every  luxury  that  fastidious  taste  could  suggest,  or  unlimited 
means  procure. 

His  wealth  he  was  himself  scarcely  able  to  estimate.  He 
was  a  member  of  the  great  lumber  firms  of  Paige,  Dixon  & 
Co.,  of  St.  Paul;  Paige  Bros.,  Davenport,  Iowa:  S.  B.  &  J.  A. 
Paige,  Fon  Du  Lac,  Wis.;  The  Paige-Sexsmith  Co.,  Superior, 
Wis.;  and  had  other  large  business  connections.  He  owned  a 
$500,000  lumber  mill  at  Duluth,  and  one  of  the  finest  stock 
farms  in  the  North- West,  on  which  he  had  many  valuable  blood- 
ed horses.  His  acres  of  timber  in  that  great  wooded  region 
were  numbered  by  the  thousands ;  while  he  did  not  himself 
know  the  exact  value  of  his  estate  of  course  others  did  not, 
but  he  was  popularly  supposed  to  be  worth  a  million,  and  sub- 
sequent events  proved  him  to  be  worth  almost  ten  millions. 
One  day  in  the  beautiful  autumn  of  1881,  while  this  lumber 
prince  was  speeding  a  pair  of  his  fast  and  blooded  stallions  on 
his  private  race  course,  the  alarm  of  fire  was  sounded. 

Not  thinking  of  danger  to  any  of  his  possessions,  he  con- 
tinued his  drive  until  the  immense  columns  of  smoke  mingled 
with  lurid  flame  attracted  his  attention  and  he  turned  toward 
the  city.     As  he  approached  the  rapidly  increasing  conflagra- 

215 


2l6  HOW   TO   PROCEED. 

tion  he  discovered  to  his  horror  that  the  flames  emanated  from 
the  Beckwith  House,  his  temporary  home,  and  where  he  had 
left  his  wife,  happy  and  smiling,  less  than  an  hour  before. 

The  large  Irame  structure  was  composed  of  exceedingly  in- 
flammable material,  and  burned  like  a  tinder-box.  The  fire 
department  responded  as  rapidly  as  possible,  but  found  the 
building  enveloped  in  flames,  and  impossible  to  save.  New 
horrors  awaited  the  awe-struck  people  in  the  announcement 
that  some  guests  had  been  cut  off  from  escape  by  the  rapid 
approach  of  the  fire,  and  were  even  then  locked  behind  those 
impassable  barriers  of  flame.  A  shriek  and  a  blanched  face  at 
a  window  established  the  fact  that  at  least  one  life  was  in  im- 
minent peril.  Just  then  Simon  B.  Paige  dashed  upon  the  lurid 
and  sickening  scene.  The  instinct  of  love  directed  his  gaze  to 
the  floor  of  his  apartments.  Through  the  curling  smoke  and 
leaping  tongues  of  flame  that  now  alternately  encircled  the 
shrieking  form  at  the  window,  he  quickly  discerned  the  fea- 
tures of  his  wife. 

"  My  God!  my  wife!"  he  cried.  "  Rescue  her,  for  God's 
sake,  rescue  her!  Is  there  no  man  here  brave  enough  to  bring 
down  my  wife?  A  thousand  dollars,  two,  five,  ten  thousand 
dollars — any  sum  to  the  man  who  will  save  my  wife !" 

But  the  heroic  firemen  needed  not  the  promise  of  reward 
to  impel  them  to  undertake  this  perilous  duty.  Already  lad- 
ders were  reaching  toward  the  fatal  window.  And  now  a 
brave  man,  he  must  be  brave  indeed,  who  essays  so  hazardous 
a  task,  is  rapidly  mounting  flame-ward. 

"  Play  the  stream  around  the  window,"  shouted  the  Cap- 
tain. A  denser  darkness  of  smoke  followed  the  deluge  of 
water  about  the  window,  and  the  white  face  was  obscured  from 
view,  to  be  momentarily  revealed  again,  a  harassing  picture  of 
agony  and  despair.  On  mounted  the  hooded  knight  of  fire 
higher  into  the  smoke,  farther  into  the  flame.    Now  the  whirl- 


THE   OSHKOSH    CASE.  21 7 

ing  and  eddying  currents  of  superheated  air  drove  down  on 
his  heroic  head  a  rolling  volume  of  dense  smoke,  blinding, 
stifling  him. 

"Come  back!"  shouted  his  companions  below.  "You'll 
lose  your  own  life  and  not  rescue  her." 

If  he  heard,  he  heeded  not.  The  cloud  rolled  away  and  he 
mounted  higher.  Fierce  flames  darted  their  fiery  tongues  in 
his  bronzed  face.     He  recoiled  from  the  terrible  heat. 

"Ah,  he's  given  it  up;  he's  coming  down,"  joyously  cried 
his  comrades,  below. 

"Go  on,  go  on!"  shouted  Paige,  frantic  with  despair.  "Go 
on,  brave  boy.  Reward!  Reward!  Money!  Fortune!  Only 
save  my  wife."  The  apparently  hesitating  fireman  probably 
heard  not  a  word  that  was  spoken.  The  roaring  and  crackling 
of  the  flames,  the  splashing  of  the  water,  the  mingled  shouts  of 
men  and  cries  of  terrified  women  creating  a  din  that  complete- 
ly extinguished  and  swallowed  up  every  individual  sound.  A 
momentary  gust  swept  smoke  and  flame  away  and  revealed 
the  valorous  fireman,  battling  heat  and  suffocation,  gazing  up- 
ward to  the  window,  now  so  near,  and  the  white  face  above, 
unconscious  of  his  presence,  silently  beckoning  him  on.  The 
moment  seems  auspicious.  A  few  rapid  strides  upward 
brought  him  almost  within  reach  of  the  suffering  victim. 
Fierce  flames  shot  their  furious  rage  in  his  face  now,  like 
demons  about  to  lose  their  prey.  The  stoutest  heart  must  re- 
coil from  that  terrific  attack.  A  moment  to  give  better  pro- 
tection to  face  and  eyes,  then  that  raging  flame-chasm  must  be 
crossed.  It  is  narrow  but  terrible.  Quick,  man,  she's  faint- 
ing, she's  reeling.  Save  her  now  or  she  is  lost.  With  a 
bound  he  scales  the  last  few  rounds,  crosses  the  roaring  fringe 
of  flame  that  encircles  the  window  and  grasps  her  falling 
form.  With  lightning-like  rapidity  the  rope  is  loosed  from  his 
own  body  and  securely  attached  to  hers.     Hand  over  hand, 


2l8  HOW    TO    PROCEED. 

with  swiftness  and  ease,  he  lowers  her  now  unconscious  form 
to  the  ground.  A  signal  jerk  on  the  rope  tells  him  that  she  is 
in  safe  hands.  He  hesitates  a  moment  before  undertaking 
that  perilous  descent.  But  there  is  no  time  to  lose.  A  crash 
in  the  rear  indicates  that  floors  are  already  giving  way.  Care- 
fully protecting  his  face,  he  swings  himself  once  more  through 
the  now  increased  and  rapidly  spreading  flames,  on  to  the  lad- 
der, and  with  rapid  descent  is  soon  out  of  danger,  weak  and 
exhausted. 

For  the  moment  all  attention  is  directed  to  the  rescued 
Mrs.  Paige,  who  has  been  removed  to  a  neighboring  house. 
The  physicians,  after  a  hasty  examination,  pronounce  her  ex- 
ternal burns  very  serious,  but  not  fatal.  All  expressed  a  se- 
rious apprehension,  from  the  peculiarity  of  her  breathing,  that 
she  had  inhaled  flame,  in  which  case  recovery  would  be  im- 
possible. Mrs.  Paige  received  the  most  careful  nursing  and 
the  best  medical  skill  that  could  be  procured.  A  very  few 
days,  however,  developed  the  terrible  results  of  the  fatal  flame 
inhalation  and  death  came  to  her  relief. 

Simon  B.  Paige  was  distracted  with  grief.  The  newspa- 
pers gave  long  and  sensational  accounts  of  the  fire,  and  dwelt 
particularly  on  the  tragic  death  of  Mrs.  Paige,  speaking  of  the 
great  wealth  of  Mr.  Paige  and  of  Mrs.  Paige's  beauty  and  ac- 
complishments. The  great  prominence  and  wealth  of  the 
family,  as  well  as  the  tragic  character  of  the  catastrophe, 
caused  the  newspapers  of  the  entire  country  to  reproduce 
these  articles  from  the  local  papers,  or  to  give,  in  many  cases, 
graphic  original  descriptions  of  the  fatal  occurrence.  This 
great  publicity  given  to  the  affair,  and  the  fact  that  in  all  these 
articles  the  wealth  and  prominence  of  the  Paige's  were  partic- 
ularly dwelt  upon,  has  a  very  important  bearing  upon  the 
case,  as  will  appear  further  on. 


THE   OSHKOSH    CASE.  2IQ 

II. 
A  SECOND  MARRIAGE. 

Not  long  after  his  wife's  sudden  death  Mr.  Paige  received 
a  letter  from  a  Mrs.  Mary  E.  Fagan,  of  New  York,  stating 
that  she  was  an  old  girl  friend  of  his  late  lamented  wife,  whose 
untimely  death  she  mourned  with  him.  It  was  a  letter  of  con- 
dolence written  in  rather  a  gushing  manner,  and  offering  for 
his  dear  wife's  sake  to  do  anything  that  lay  in  her  power  to 
lighten  his  burdens  and  soothe  his  sorrows.  In  fact,  she 
begged  to  be  allowed  to  come  and  take  care  of  his  motherless 
children. 

He  replied  that  he  regretted  to  say  that  he  had  never 
heard  his  late  wife  speak  of  a  friend  of  her  girlhood  years  of 
the  name  given,  but  supposed  probably  it  had  escaped  his 
mind.  He  thanked  her  very  kindly  for  her  generous  offer  to 
come  to  be  a  mother  to  his  motherless  children,  but  as  he  had 
no  children,  there  was  really  no  necessity  for  that.  This  letter 
brought  a  second,  which  detailed  so  many  circumstances  pf 
his  wife's  early  life,  that  he  was  convinced  Mrs.  Fagan  and  his 
wife  had  really  been  companions  in  their  youth.  She  said  she 
was  a  widow ;  that  her  maiden  name  was  Libby ;  that  her  hus- 
band had  been  dead  about  two  years,  and  gave  other  particu- 
lars of  herself  and  family. 

Other  correspondence  followed,  which  his  friends  knew  lit- 
tle of,  for  it  soon  began  to  partake  of  that  sentimental  char- 
acter which  he  did  not  care  to  make  public. 

This  woman,  in  fact,  first  by  her  correspondence,  and  sub- 
sequently by  the  magnetism  of  her  presence,  exerted  a  power- 
ful influence  over  Mr.  Paige.  Perhaps  he  labored  under  the 
delusion  that  she  would  make  a  worthy  successor  to  Mrs. 
Paige  and  fill  the  void  to  a  certain  extent  which  her  tragic 
death  had  created  in  his  home  and  heart.     He  went  to  New 


220  HOW    TO    PROCEED. 

York  twice  to  see  her,  and  on  his  second  visit  they  were  mar- 
ried, January  9,  1883,  against  the  strenuous  objections  of  his 
brothers  and  friends. 

III. 

A  TRAGIC  DEATH. 

The  honeymoon  was  spent  in  American  travel.  The  prin- 
cipal cities  and  points  of  interest  in  the  country  both  East  and 
West  were  visited.  Two  months  thus  spent  found  them  at 
Davenport,  Iowa,  where  Mr.  Paige  had  milling  interests. 
They  stopped  here  at  the  Kimball  House.  On  the  morning  of 
March  nth,  1883,  two  months  and  two  days  after  their  mar- 
riage in  New  York,  Simon  B.  Paige  was  found  dead  in  his  bed 
in  this  hotel.  Death  had  resulted  from  a  pistol  ball  wound  in 
the  head.  Great  excitement  was  created  by  the  announce- 
ment that  Simon  B.  Paige,  the  millionaire  lumberman,  had  sui- 
cided. His  wife  affected  inconsolable  grief.  His  friends  knew 
no  reason  for  melancholy  or  dissatisfaction  with  life.  Of 
course  they  had  seen  nothing  of  him  since  his  second  mar- 
riage. They  thought  perhaps  he  had  become  convinced  of  his 
great  mistake,  and  not  caring  to  face  his  relatives  and  friends, 
had  determined  to  take  his  life.  Others  broadly  hinted  that 
the  woman  had  something  to  do  with  his  taking  off,  although 
there  was  no  direct  or  positive  evidence  of  this.  The  obsequies 
were  scarcely  over  when  she  began  with  eager  and  unseemly 
haste  to  seize  all  the  property  and  convert  it  into  cash.  His 
brother,  C.  C.  Paige,  became  satisfied  from  her  appearance, 
conversation,  and  the  circumstances  of  their  courtship  and 
marriage,  that  she  was  an  adventuress,  and  thought  that  they 
ought  not  to  submit  to  this  wholesale  robbery  by  one  entirely 
unworthy  of  their  dear,  but  misguided  brother,  without  mak- 
ing a  thorough  investigation  of  her  character,  antecedents  and 
history.     The  long  and  complicated  legal  warfare  that  ensued, 


THE   OSHKOSH   CASE.  221 

had  for  its  object  on  the  part  of  the  woman,  the  obtaining  and 
holding  all  of  his  property,  which  the  law,  in  the  absence  of  a 
will,  would  give  her  for  life,  there  being  none  but  collateral 
heirs  to  the  estate.  His  brothers  believed  that  the  whole  thing 
was  a  scheme  set  up  by  this  woman,  to  marry  a  millionaire, 
enjoy  the  luxuries  of  wealth  and  social  station  and  finally 
come  into  possession  of  his  vast  property  herself.  They  be- 
lieved that  a  woman  capable  of  conceiving  and  so  far  execu- 
ting so  base  a  design  must  have  a  history ;  that  so  cold  and 
heartless  an  adventuress  would  likely  have  made  some  alli- 
ances in  life  that  would  render  her  marriage  with  their  brother 
illegal.  In  short,  they  did  not  propose  to  see  her  walk  off 
with  eight  or  ten  million  dollars  without  knowing  who  she 
was  and  something  of  her  antecedents  and  personal  history. 

At  this  point  began  a  campaign  of  the  most  remarkable 
detective  work  ever  accomplished  in  this  or  any  other  country. 

IV. 

OPENING   THE   CASE. 

Mr.  C.  C.  Paige,  the  surviving  brother  of  Simon  B.  Paige, 
whose  sudden  and  tragic  death  gave  rise  to  all  sorts  of  rumors 
and  suspicions,  adopted  the  Fabian  policy  of  delay  until  he 
could  have  opportunity  to  investigate  the  record  of  his  dead 
brother's  wife.  Besides  her  name,  Fagan  or  Libby,  he  knew 
nothing.  Notwithstanding  this  he  corresponded  with  a  number 
of  detectives  in  different  parts  of  the  country.  The  best  talent 
in  New  York,  Chicago,  St.  Louis  and  Cleveland  worked  several 
weeks  on  the  case  without  result. 

In  June,  1883,  Col.  Reilly,  then  Chief  of  the  Police  of  Cin- 
cinnati, received  a  letter  from  Mr.  Paige  asking  him  to  send  him 
the  name  of  some  reliable  detective  here.  Col.  Reilly  recom- 
mended Captain  J.  C.  Grannan,  Manager  of  the  Grannan  De- 


222  HOW   TO    PROCEED. 

tective  Bureau,  as  a  man  competent  for  the  work.     A  few  days 
later  Captain  Grannan  received  a  letter  from  Mr.  Paige. 

The  information  that  he  was  able  to  send  about  the  work 
to  be  done  was  meager  indeed,  beyond  the  names  she  herself 
had  given,  which,  if  she  were  an  adventuress,  might  be  entirely 
wrong,  and  a  description  of  her  personal  appearance,  and  the 
additional  fact  that  she  had  somewhat  of  a  literary  disposition 
and  a  penchant  for  the  stage,  and  might  have  been  an  amateur 
actress  at  one  time.  Beyond  these  slight  clews  Captain  Gran- 
nan had  nothing  to  guide  him. 

Further  correspondence  settled  the  terms,  and  having  the 
assurance  that  the  case  involved  much,  and  that  success  would 
be  amply  paid,  he  went  to  work  nothing  daunted  by  the  mea- 
gerness  of  the  information  at  hand.  He  worked  faithfully  for 
five  weeks,  diligently  searching  in  every  department  or  field  of 
labor  in  the  city.  Literary  people,  library  people,  theatrical 
people,  all  were  cautiously  questioned,  but  none  were  able  to 
furnish  any  information.  The  directory  showed  only  five 
names  of  Fagan  and  Ljbby  together,  and  these  followed  closely 
proved  to  have  no  relation  whatever  to  this  case. 

After  five  weeks  of  hard  and  fruitless  labor,  he  felt  greatly 
discouraged,  and  wrote  Paige  that  he  regretted  very  much  that 
no  clew  whatever  of  a  Fagan  or  Libby  family  could  be  found. 
He  detailed  the  circumstances  of  his  search,  stated  that  he 
was  considerably  discouraged,  but  would  not  abandon  the  case. 
He  still  hoped  something  might  occur  to  throw  some  light  on 
the  matter,  and  assured  Mr.  Paige  if  these  parties  ever  had  a 
home  in  Cincinnati  or  were  known  publicly  here,  he  would 
find  a  trace  of  them. 

V. 

LIGHT. 

An  hour  after  mailing  this  discouraging  letter,  he  was 
walking  up  Vine  street  and  met  John  Davis,  the  theatrical 


THE    OSHKOSH    CASE.  223 

agent,  for  years  door-keeper  of  Robinson's  Opera  House  in 
this  city,  and  personally  acquainted  perhaps  with  more  theatri- 
cal people  than  any  other  man  in  Cincinnati.  The  thought 
flashed  upon  the  Captain's  mind  that  possibly  Davis  might 
know  something  of  the  parties  he  was  looking  for.  He  ac 
costed  him  in  his  usual  hearty  manner,  asked  him  to  take  a 
cigar  with  him,  and  in  the  course  of  the  resulting  conversation, 
found  excuse  to  ask  about  his  knowledge  of  a  family  by  the 
name  of  Fagan  or  Libby.  The  Captain's  last  hope  seemed  to 
die  within  him,  when,  after  ransacking  the  chambers  of  his 
memory  for  many  minutes,  Davis  was  unable  to  recollect  any 
one  of  that  name.  "But,"  said  he,  "I  want  to  introduce  you 
to  a  young  man  who  knows  everybody  in  light  comedy  and  es- 
pecially ballet.  He  has  charge  of  the  ballet  at  the  Grand 
Opera  House.  Come,  and  we  will  find  him  now."  Starting 
out,  they  soon  found  Mr.  Chas.  Bauer,  at  the  corner  of  Vine 
and  Longworth  streets,  and  the  Captain  was  introduced.  They 
talked  the  matter  over.  He  remembered  no  one  by  the  name. 
The  Captain  dwelt  particularly  on  his  personal  description. 

"  By  Jove,"  exclaimed  Bauer,  "  I  wonder  if  it  could  be  Alice 
Pierrepoint  and  her  sister?  We  had  two  sisters  here  of  that 
name,  and  your  description  sounds  like  them."  Then  they 
compared  notes  further,  and  Captain  Grannan  became  convinced 
that  he  had  found  some  one  whose  personal  description  an- 
swered very  closely  to  that  given  him  of  Mrs.  Mary  E.  Fagan, 
now  Mrs.  Simon  B.  Paige. 

"Where  did  they  live?"  asked  the  Captain. 

"At  101  Barr  street,  I  think." 

It  was  now  in  the  evening.  Early  next  morning  found 
him  at  101  Barr  street,  ringing  the  door-bell.  The  lady  of  the 
house  knew  nothing  of  any  one  of  that  name.  She  had  only 
lived  there  a  short  time.  Did  not  know  who  was  there  before 
her.     The  neighbors  next  door  had  lived  there  a  long  time, 


224  HOW    TO    PROCEED. 

and  would  probably  remember  if  any  one  of  that  name  had 
ever  lived  there.     Frustrated  again,  he  sought  the  next  door. 

It  should  be  stated  in  all  these  cases,  to  allay  suspicion  of 
the  real  cause  for  which  he  wanted  information  of  this  woman, 
and  also  to  interest  the  listener  in  his  questions  and  search, 
and  to  obtain  all  the  information,  he  had  uniformly  told  that  he 
represented  a  law  firm  in  New  York — that  they  had  positive 
information  that  a  large  fortune  had  been  left  in  England  to 
the  Libby's  and  that  he  was  very  desirious  of  finding  Mrs. 
Fagan,  or  Libby,  in  order  to  apprise  her  of  her  awaiting  fort- 
une, as  there  would  be  a  good  fee  in  it  for  him,  if  he  could  find 
her. 

He  rang  at  103  Barr  street,  next  door  to  101 ;  a  young  lady 
came,  evidently  the  daughter.  The  Captain  sang  the  same 
song  to  her,  of  the  New  York  law  firm,  and  the  fortune,  that 
he  had  to  all  the  rest.  She  swallowed  it  open-mouthed  and  with 
staring  eyes,  and  without  making  any  answer  to  Captain  Gran- 
nan's  question  ran  to  the  stairs  and  called  up,  "Oh  mamma, 
come  down,  the  Libby 's  have  been  left  a  fortune.  They  won't 
have  to  play  on  the  stage  any  more." 

It  is  impossible  to  describe  Captain  Grannan's  joy  at  hear- 
ing these  words.  This  must  be  right.  At  last  a  trace  is  found ! 
The  mother  came  down.  Their  curiosity  was  insatiable.  They 
wanted  to  know  so  much  from  him  that  he  could  scarcely  get 
the  information  he  required  from  them. 

He  read  an  imaginary  letter  from  the  New  York  firm.  He 
had  provided  himself  with  a  book  on  English  estates,  and  read 
to  them  from  that  to  convince  them  that  it  was  all  right.  He 
learned  from  them  that  Mrs.  Mary  E.  Fagan  was  a  married 
woman,  but  did  not  live  with  her  husband.  That  she  and  her 
younger  sister,  Miss  Libby,  performed  in  the  ballet,  and  took 
the  part  of  supernumeraries  in  light  comedy  at  the  Grand 
Opera  House,  under  the  stage  name  of  Alice  and  Laura  Pierre- 


THE    OSHKOSH    CASE.  225 

point;  that  they  had  left  nearly  a  year  before  for  New  York; 
got  a  more  accurate  personal  description  and  satisfied  himself 
that  this  was  the  right  party. 

He  told  them  that  he  had  the  greatest  difficulty  in  getting 
pictures  of  the  true  heirs  to  this  fortune,  by  which  they  could 
be  identified;  asked  if  they  knew  whether  they  ever  had  any 
pictures  taken?  "Why,  yes,  we've  got  a  picture  of  Mrs. 
Fagan.  Jennie,  go  and  get  that  photograph,"  and  Jennie,  after 
a  little  fumbling  around,  produced  a  very  good  cabinet  photo- 
graph of  Mrs.  Mary  E.  Fagan,  alias  Alice  Pierrepoint,  now 
Mrs.  Simon  B.  Paige. 

"Now,  if  you  would  be  so  kind  as  to  loan  me  this  picture," 
said  the  Captain  in  his  blandest  tones,  "  I  might  be  able  by  it 
to  do  these  people  the  greatest  service." 

"  Why,  certainly,"  said  the  old  lady,  "take  it  along." 

"You  can  keep  it  if  you  like,"  said  the  daughter  Jennie,  "  I 
don't  really  care  for  it." 

With  his  picture  and  his  information  the  Captain  departed 
from  that  house,  the  happiest  man  that  walked  the  streets  of 
Cincinnati  that  morning.  He  rushed  to  the  telegraph  office 
and  wired  Paige:  " Since  writing  you  yesterday  have  made  a 
valuable  discovery;  particulars  by  first  mail."  He  went  to  a 
photographer  and  had  a  new  negative  taken  from  the  picture 
and  sent  the  original  photograph  to  Oshkosh  with  the  particu- 
lars of  his  find,  for  identification  by  the  Paiges. 

To  say  that  Detective  Grannan  was  elated,  weakly  ex- 
presses his  feelings.  He  was  half  wild  with  joyous  excitement 
at  his  unexpected  discovery.  He  was  certain  he  had  the  right 
party.  And  then  his  discoveries  contained  possibilities  of 
success  that  he  had  hitherto  scarcely  dared  to  dream  of.  Mrs. 
Fagan — a  married  woman!  Had  she  ever  been  legally  sepa- 
rated from  her  husband?  If  not,  then  her  marriage  with 
Paige  was  illegal  and  void.  At  once  the  magnitude  and  char- 
15 


226  HOW    TO    PROCEED. 

acter  of  the  work  to  be  done  unfolded  itself  before  him 
Yielding  no  longer  to  the  ecstasy  of  joy  that  further  develop- 
ments might  make  ephemeral  he  proceeded  to  plan  his  work. 

VI. 

IN   THE   VALLEY. 

Help  was  needed.  Mr.  John  A.  Burgoyne,  a  young  mem- 
ber of  the  Bureau,  temporarily  residing  in  Summit  County, 
Ohio,  who  had  manifested  considerable  detective  abilit}',  was 
summoned  to  the  city  by  telegraph.  He  came  without  delay. 
In  an  hour's  private  consultation  with  Captain  Grannan, 
enough  of  the  nature  of  the  case  was  unfolded  to  enable  him 
to  work  intelligently.  The  discoveries  of  the  last  two  days 
were  ca^fully  narrated.  He  was  first  assigned  to  see  the 
owner  of  the  house  in  which  the  Libbys  lived  on  Barr  street, 
and  learn  from  him  all  additional  facts  possible,  especially  when 
they  left  the  city  and  where  they  went. 

Detective  Burgoyne  shrewdly  surmised  from  what  he  had 
already  learned  of  the  Libbys,  that,  perhaps,  they  left  rather 
suddenly  and  probably  owing  rent.  So,  to  put  himself  on 
sympathetic  relations  with  the  landlord,  he  represented  him- 
self as  a  creditor  of  the  Libbys,  said  they  had  bought  material 
from  him  for  costuming  while  on  the  stage,  and  had  never 
paid ;  he  thought  he  would  look  them  up ;  could  not  find  them 
at  their  late  residence,  and  thought  he  might  give  some  in- 
formation, etc. 

"  Well,  now,  I'll  tell  you,  my  young  friend,"  said  the  land- 
lord, "I  think  you  might  as  well  charge  that  little  bill  up  to  P. 
and  L.  Why,  the  Libbys  left  here  a  year  ago  or  more.  They 
owed  me  a  month's  rent,  and  I  guess  that's  gone.  You  see, 
I'll  tell  you  how  it  was,  since  you're  somewhat  in  the  same 
boat  with  myself.  Mrs.  Libby  and  one  of  the  girls,  the  un- 
married one,  her  name  was  Laura  I    think,  packed  all  the 


THE    OSHKOSH    CASS.  227 

furniture  and  left  for  the  east,  taking  the  two  small  children 
of  Alice  with  them.  The  other  girl,  the  married  one,  the 
mother  of  these  children  (I  never  saw  any  husband  around 
though),  remained  behind  three  or  four  weeks. 

"She  came  over  when  her  mother  went  away,  to  say  that 
she  would  stay  till  her  mother  sent  her  money  to  pay  the  rent. 
Well,  sir,  you  may  not  believe  me,  but  that  woman  actually 
stayed  in  that  empty  house  three  weeks.  She  had  nothing 
but  an  old  straw  tick  thrown  on  the  floor  to  sleep  on  and  no 
cover  but  her  own  clothing.  She  had  an  old  wash  bowl  and 
an  almost  toothless  comb,  and  made  her  toilet  by  a  small  three 
cornered  piece  of  a  looking  glass  fastened  to  the  wall  with 
three  tacks.  Not  very  luxurious  living,  eh?  I  don't  know 
how  or  where  she  got  anything  to  eat. 

"  Well,  one  morning  a  small  hand  express  stopped  at  the 
door  of  the  Iyibby  residence,  a  very  small  and  shabby  looking 
trunk  was  brought  out  by  the  expressman,  and  he  moved  off 
with  his  valuable  load  toward  the  C.  H.  &  D.  depot.  Mrs. 
Fagan  then  appeared  at  the  door,  and  seeing  me  standing 
there  by  my  gate,  just  across  the  street  from  her,  came  over 
and  handed  me  the  key,  saying  that  she  regretted  very  much 
that  she  could  not  pay  the  rent,  but  her  mother  had  been  dis- 
appointed in  getting  money  and  she  would  send  it  to  me  when 
she  got  east.     But  I  never  expect  to  get  it,  my  friend,  never." 

"  How  did  she  spend  her  time  here  after  her  mother  went 
away?"  queried  the  young  detective. 

"  I  can't  say,  but  I  heard  after  they  were  all  gone,  that  she 
was  staying  here  really  to  get  a  divorce  from  her  husband.  I 
don't  know  whether  she  got  it  or  not,  but  I  guess  Charley 
Baker  would  get  it  for  her  if  it  could  be  done." 

"Charley  Baker  had  the  case,  did  he?"  asked  Detective 
Burgoyne. 

"That's  what  I  heard;  fact  is,  I  never  thought  any  more 


228  HOW   TO   PROCEED. 

about  them,  after  they  went  away,  and  paid  no  attention  to  the 
reports  that  went  around." 

"Well,  I  think  my  bill  is  a  dead  duck,  as  you  say,  and  I 
guess  I  will  go  back  to  the  office  and  charge  it  up  to  P.  and 
L.,"  and  thanking  the  landlord  for  his  information  and  bidding 
him  good  day,  our  young  member  took  his  joyous  way  back 
to  the  office  to  report. 

"A  divorce!  Charley  Baker,  the  attorney!"  sang  out  De- 
tective Grannan.  "Here's  something  new.  By  Jove,  I'll  see 
him.  We're  going  to  the  bottom  of  this  thing."  And  almost 
before  the  other  members  present  knew  what  was  meant,  the 
Captain  had  passed  out  of  the  door  and  disappeared  on  his 
way  to  attorney  Chas.  W.  Baker's  office. 

"Hello,  Charley!" 

"Hello,  Captain,  come  in.     How's  everything?" 

"First-class,  couldn't  be  better.     How's  the  law?' 
,  "  Busy  all  the  time,  but  alwa)^s  got  time  to  give  a  few  min- 
utes to  a  friend.     What  can  I  do  for  you  to-day?" 

"Well,  nothing  of  much  importance.  One  of  your  clients, 
or  at  least  I  understand  it  is  one  of  your  clients,  owes  me  a  lit- 
tle bill,  and  I  thought  you  might  throw  a  little  light  on  the  sub- 
ject, and  perhaps  give  a  little  assistance  in  getting  it." 

"Well,  now,  I  don't  have  many  of  that  kind  of  clients  that 
owe  little  bills  around  promiscously,  but — " 

"Well,  this  might  have  been  a  charity  case,  Mr.  Baker." 

"Possibly  so,"  said  he,  laughing,  "who  is  the  party?" 

"Mrs.  Mary  E.  Fagan." 

"Oh,  yes,  that  was  a  charity  case,  sure  enough.  But  I 
guess  she  is  able  to  pay  you  now,  as  she  has  recently  married, 
and  I  understand  rich." 

"Married!  hardly  married  again?"  said  the  Captain.  "  She 
is  already  married." 

"Oh,  yes,  but  I  got  her  a  divorce  recently." 


THE    OSHKOSH    CASE.  229 

"So?     How  long  since?" 

"Not  long  ago.  L,et  me  see,"  turning  to  his  book.  "Yes, 
here  it  is.  The  decree  was  granted  on  the  19th  day  of  De- 
cember,  1882." 

As  he  held  the  book  open,  the  Captain's  sharp  eye  caught 
the  docket  number  of  the  case,  64554,  which  he  hastily  pen- 
ciled on  his  cuff. 

"Yes,  I  sent  the  divorce  on  to  New  York  to  her,  $75.00 — 
C.  O.  D.,  and  the  money  came  back.  I  don't  know  how  she 
raised  it." 

Thanking  Mr.  Baker  for  his  kindness,  the  Captain  left. 

This  was  progress,  but  not  so  encouraging.  That  divorce 
might  knock  the  bottom  out  of  the  whole  case.  Captain 
Grannan  felt  considerably  cast  down  about  it  but  reported  at 
once  to  Paige  by  wire,  that  Mary  E.  Fagan  had  been  divorced 
and  he  would  send  certified  copy  of  proceedings  by  mail. 
Though  not  now  so  hopeful  he  was  still  determined  to  go  to 
the  bottom  and  taking  detective  Burgoyne  and  confidential 
clerk  Grigsby,  went  to  examine  the  court  records.  In  twenty- 
four  hours  they  had  true  copies  of  the  entire  proceedings, 
properly  certified,  in  the  mail  and  on  the  way  to  C.  C.  Paige, 
at  Oshkosh.  The  return  mail  brought  a  check  for  $100  and 
an  order  to  come  to  Oshkosh  by  first  train.  The  Captain  tele- 
graphed his  departure  and  arrived  in  Oshkosh  six  hours  soon- 
er than  Mr.  Paige  expected.  He  went  to  his  office  about  1 1 
a.  m.  Mr.  C.  C.  Paige  was  in  the  iron  business.  The  Captain 
found  him  very  busy. 

VII. 

A  detective's  song. 
Captain  Grannan  introduced  himself  to  Mr.   Paige  as  the 
representative  of  the  Union  Fence  Co.,   Painesville,  O.      "I 
only  want  about  three  minutes  of  your  time,  Mr.  Paige  (I  be- 
lieve I  have  the  honor  of  addressing  Mr.  Paige.)" 


230  HOW   TO    PROCEED. 

"That  is  my  name,  sir." 

"I  have  been  sent  out  into  your  great  country,  Mr.  Paige, 
to  introduce  what  is  known  as  the  Patent  Combination  Fence, 
composed  of  wood,  iron  and  sand.  We  use  in  making  our 
fence  large  quantities  of  iron  in  all  forms.  You  are  a  manu- 
facturer of  iron,  and  if  I  am  successful  in  introducing  our 
fence,  we  want  to  contract  with*  some  large  manufacturer  here 
to  make  the  iron  for  us." 

"Well,  that  sounds  like  business,"  said  Paige. 

"Yes,  sir,  we  mean  business.  We've  got  the  best  fence  in 
the  world,  and  we  know  it,  and  we  propose  to  put  it  up  all 
over  this  country.  We  have  the  great  secret  of  making  wood 
as  durable  as  iron.  Our  fence  is  a  wooden  fence  except  posts 
and  points.  We  take  a  piece  of  green  wood,  and  b)'  a  mechan- 
ical contrivance  we  suck  every  particle  of  sap  or  moisture  out 
of  it.  The  stick  is  left  like  a  honey-comb,  and  while  in  this 
open  or  honey-comb  condition,  we  force  into  it  by  powerful 
machinery  a  resinous  or  bituminous  substance.  The  wood 
is  thoroughly  infiltrated  with  this  substance.  It  will  last  till 
the  millennium.  Then  we  make  it  into  all  shapes  and  sizes 
and  patterns.  The  delicate  workmanship  on  a  fence  suitable 
for  your  front  yard  is  in  striking  contrast  with  the  strong 
enclosure  for  a  jail  yard  that  we  also  put  up.  Then  there  is 
the  church  fence,  the  farm  fence,  the  country  fence  and  every 
conceivable  description  of  fence;  and  we  make  all  of  them. 
Now,  if  you'll  take  hold  of  this  thing  and  help  me  introduce 
it  here,  we  will  make  it  interesting  for  you." 

"Well,  that  seems  plausible,  and  I  would  like  to  converse 
further  with  you  about  it,  but  you  will  have  to  excuse  me 
now,  as  I  am  looking  for  a  gentleman  from  Cincinnati,  and 
must  go  to  the  train  now  to  meet  him." 

"Certainly,  certainly,"  said  Detective  Grannan.  "I  am 
stopping  at  the  hotel  down   here  and  will  be  glad  to  confer 


THE   OSHKOSH    CASE.  23I 

with  you  there  at  any  time  convenient  to  you.  When  shall 
we  meet  and  talk  further  on  this  question?" 

"Let  me  see.  I  shall  be  pretty  busy  very  likely  all  the  af- 
ternoon with  my  friend,  and — well,  I  think  to-morrow  morn- 
ing, say  ten  o'clock." 

"That  will  suit  me,"  said*  the  Captain. 

"By  the  way,  I've  forgotten  your  name  if  you  mentioned 
it.     For  whom  shall  I  call  to-morrow?" 

The  Captain  handed  him  one  of  his  cards  and  waited  for 
results.  Mr.  Paige  read  the  card  carefully '  and  gradually  his 
eyes  lifted  and  wandered  up  to  the  smiling  countenance  of  De- 
tective Grannan.     He  wasn't  long  in  catching  on. 

"Shake,"  he  said,  "it's  on  me.     What'll  you  take?" 

They  went  to  see  Paige's  attorney,  Geo.  W.  Burnell.  Mr. 
Paige  introduced  the  Captain  as  Mr.  Bronsou,  a  fence  man, 
and  he  sang  the  attorney  the  same  song.  When  he  got 
through,  the  attorney,  who  was  to  be  employed  to  attend  to 
all  the  ligitation  for  the  new  business,  and  draw  up  the  papers 
for  the  organization  of  the  company  had  become  much  inter- 
ested and  promised  his  hearty  co-operation. 

Then  he  asked  Paige,  by  way  of.  side  remark,  whether 
Grannan  had  shown  up  yet. 

"I  expect  him  here  this  evening,"  said  Paige,  evasively. 

As  they  were  about  to  leave  "Mr.  Bronson"  invited  Bur- 
nell to  call  on  him  at  the  hotel  and  handed  him  one  of  his 
cards.  Burnell  glanced  at  the  card  hastily  at  first,  then  looked 
more  closely,  then  read  carefully,  and  as  the  truth  of  the  joke 
gradually  dawned  upon  him  he  exclaimed: 

"Well,  this  is  good — very  clever." 

"I  guess  we've  got  the  right  man,  don't  you  think  so?" 
said  Paige. 

"He'll  do,"  said  the  attorney. 

It    was   then    arranged  that  Captain   Grannan   should  be 


232  HOW   TO   PROCEED. 

known  there  publicly  as  an  electric  light  man,  and  should  go 
under  the  name  of  Bronson,  and  during  his  whole  stay  in  Osh- 
kosh,  and  all  his  subsequent  visits  there,  and  even  yet  he  is 
known  there  as  Bronson. 

The  first  thing  done  was  to  discharge  all  the  other  detec- 
tives working  on  the  case.  Then  Mr.  Paige  told  Grannan  all 
that  had  taken  place  at  that  end  of  the  line.  Immediately 
after  the  tragic  death  of  his  brother,  the  unnatural  wife  took 
his  watch,  an  elegant  gold  hunting  case,  of  great  value,  and 
sold  it  to  a  banker  for  one-half  less  than  C.  C.  Paige  would 
have  given  for  it.  She  would  not  let  him  have  it  for  spite. 
She  took  his  diamond  from  his  shirt  and  sold  it  almost  before 
his  body  was  cold.  A  splendid  stallion  that  cost  him  $4,000 
she  let  go  for  $625.  Then  she  attempted  to  have  herself  ap- 
pointed administratrix  of  his  estate.  She  could  not  give  bond 
and  so  that  failed.  C.  C.  Paige,  as  next  of  kin,  was  then  ap- 
pointed and  qualified.  Of  course,  she  claimed  all  of  his  vast 
estate.  They  believed  her  an  adventuress,  doubted  the  legality 
of  their  marriage,  and  proposed  to  investigate  her  record  from 
beginning  to  end. 

Detective  Grannan  now  learned,  for  the  first  time,  the  enor- 
mous value  of  the  property  for  which  they  were  going  into 
litigation.  The  task  of  saving  nine  million  seven  hundred 
thousand  dollars  from  the  clutches  of  an  unworthy  adventuress, 
a  schemer  without  soul  or  conscience,  devolved  on  him.  The 
weight  of  the  great  responsibility  was  heavy  upon  him,  espec- 
ially when  he  knew  how  slender  were  the  threads  upon  which 
hung  the  possibility  of  success,  and  how  easily  all  his  work  of 
investigation  might  be  defeated  by  finding  that  every  step  in 
her  proceedings  was  done  under  cover  of  law.  However,  he 
now  went  to  work  with  a  determination  to  win,  if  success  were 
possible. 

From  this  point  then  a  new  start  was  taken  in  unfolding 


THE   OSHKOSH   CASE.  233 

this  remarkable  ease;  a  case  involving  many  millions  of  money, 
and  months  of  hard  labor,  fraught  many  times  with  danger  and 
excitement;  a  case  that  required  the  work  of  many  men,  and 
took  Captain  Grannau  and  members  of  his  force  into  almost 
every  State  in  the  Union,  and  in  which  a  number  of  young 
detectives  received  their  first  careful  drilling  in  their  chosen 
profession. 

VIII. 

TRAPPING    A   WOMAN. 

Detective  Grannan  carefully  compared  notes  with  attorney 
Geo.  W.  Burnell  and  got  all  the  legal  points  of  the  case  to  help 
in  formulating  his  theory  and  laying  his  plans  for  action.  A 
circumstance  that  occurred  early  in  the  legal  proceedings  and 
which  was  the  first  almost  positive  proof  of  the  fraudulent 
character  of  the  widow  of  Simon  B.  Paige,  lately  Mrs.  Mary  E. 
Fagan,  is  worth  relating,  as  it  was  an  important  part  of  the 
information  that  Detective  Grannan  got  from  attorney  Burnell. 
In  addition  to  the  unseemly  haste  of  the  woman,  as  related  be- 
fore, to  convert  Mr.  Paige's  property  into  money,  she  went 
into  court  at  Davenport,  Iowa,  where  he  owned  large  property, 
and  got  an  allowance  of  $300  per  month  pending  the  settle- 
ment of  the  estate. 

Then  she  went  to  Duluth  where  his  possessions  were  equally 
large  and  obtained  an  allowance  of  $250  per  month.  She 
then  went  to  Oshkosh  and  attempted  the  same  thing,  and  as 
stated  before,  to  have  herself  appointed  administratrix  of  the 
estate.  When  the  application  came  on  for  hearing  at  Oshkosh, 
Mr.  Burnell  took  occasion  to  put  a  few  questions  to  the 
woman  who  was  claiming  so  much : 

Burnell — Mrs.  Paige,  I  believe  you  were  married  once  be- 
fore your  marriage  with  the  late  Mr.  Paige? 

Mrs.  Paige. — Yes,  sir. 


234  HOW   TO   PROCEED. 

B. — What  was  your  husband's  name? 

Mrs.  P.-Wm.  E.  Fagan. 

B. — Is  Mr.  Fagan  still  living 

Mrs.  P. — No,  sir,  he  is  dead. 

B. — How  long  since? 

Mrs.  P. — About  three  years. 

B. — Where  did  he  die? 

Mrs.  P.— At  Santa  Fe,  Texas. 

B—  What's  that?     Did  you  say  Santa  Fe,  Texas? 

Mrs.  P. — Yes,  sir,  Santa  Fe,  Texas. 

B. — Were  you  there  when  he  died? 

Mrs.  P. — No,  sir. 

B. — What  evidence  have  you  of  his  death? 

Mrs.  P. — Well,  I  have  letters  stating  that  he  was  dead,  and 
also  the  undertaker's  certificate  showing  that  he  died  and  was 
duly  interred. 

B. — Have  you  that  certificate  with  you? 

Mrs.  P. — No,  sir,  I  have  not. 

B. — Can  you  find  it? 

Mrs.  P. — I  think  I  can.    I  think  I  have  it  among  my  papers. 

B. — (To  the  Court.)  If  your  Honor  please,  I  would  like 
the  witness  instructed  to  bring  this  paper  into  court. 

The  Court. — You  may  proceed  with  the  examination  at 
present  and  the  witness  will  bring  the  paper  into  court  this 
afternoon. 

B. — Now,  Mrs.  Paige,  you  corresponded  with  your  husband 
when  he  was  in  Santa  Fe,  Texas,  didn't  you? 

Mrs.  P. — Oh,  yes,  frequently. 

B. — About  how  frequently? 

Mrs.  P. — He  used  to  write  every  week. 

B. — And  I  suppose  you  as  a  faithful  wife  answered  his  letters? 

Mrs.  P. — Yes,  sir,  I  wrote  to  him  sometimes  two  or  three 
times  a  week. 


THE    OSHKOSH    CASE.  235 

B. — And  his  address  became  very  familiar  to  you,  didn't  it  ? 

Mrs.  P. — Oh,  yes,  I  should  think  in  writing  it  forty  or  fifty 
times  I  ought  to  become  pretty  familiar  with  it. 

B. — Well  now,  Mrs.  Paige,  will  you  be  kind  enough  to 
take  this  envelope  and  address  it  with  this  pen  just  as  you  used 
to  do  when  your  husband  was  down  there  where  he  died? 

Mrs.  P. — Certainly. 

And  she  took  the  pen  and  wrote: 

MR.  WM.  E.  FAGAN, 

Santa  Fe,' 

Texas. 

B. — Now,  you  are  sure  this  is  right? 

Mrs.  P. — Yes,  sir. 

B. — And  this  is  just  as  you  have  written  it  scores  of  times 
before — Mr.  Wm.  E.  Fagan,  Santa  Fe,  Texas — is  it? 

Mrs.  P. — Yes,  sir. 

The  excitement  and  confusion  among  the  crowd  of  in- 
terested spectators  was  at  this  point  very  great. 

Mr.  Burnell  then  addressed  the  Court: — Now,  if  your  Honor 
please,  I  submit  this  envelope  on  which  this  woman  has  writ- 
ten the  address  of  her  first  husband,  Wm.  E.  Fagan,  Santa  Fe, 
Texas.  Your  Honor  heard  the  positive  character  of  her  testi- 
mony on  this  point,  and  you  know,  too,  that  there  is  no  such 
place  as  Santa  Fe,  Texas. 

"Well,  Santa  Fe,  wherever  it  is;  Santa  Fe,  wherever  it  is," 
fairly  shouted  Mrs.  Paige,  with  her  brazen  facility  for  turning 
at  the  critical  moment,  if  she  saw  she  was  wrong  or  about  to 
be  caught. 

But  the  incident  sadly  impaired  her  case.  The  judge  laid 
the  matter  over  for  further  evidence,  and  after  several  days 
she  brought  into  court  a  paper  purporting  to  be  the  death  or 
burial  certificate.     It  was  crumpled  and  torn  and  bore  little 


236  HOW   TO   PROCEED. 

evidence  of  genuineness.  As  stated  before  she  could  not 
qualify  as  executrix  and  the  judge  only  allowed  her  a  small 
sum  monthly  here  in  view  of  the  uncertain  attitude  in  which 
she  stood  before  the  court  and  the  people.  C.  C.  Paige  was 
appointed  administrator,  and  then  began  a  fight  for  the  prop- 
erty. 

Detective  Grannan  got  all  the  possible  information  about 
the  woman,  her  peculiarities  of  speech  and  action,  style  and 
subject  matter  of  conversation,  etc.  A  very  important  piece 
of  information  he  dropped  onto  by  accident — important,  be- 
cause it  was  the  key  that  unlocked  the  future  of  the  case  for 
him.  One  day  when  Mrs.  Paige-Fagan  was  conversing  with 
Mrs.  John  Paige,  a  brother's  wife,  the  latter  remarked  the  reg- 
ularity and  beautiful  pearly  whiteness  of  Mrs.  S.  B.  Paige's 
teeth.  "Are  they  natural,?"  she  asked.  "Oh,  no,"  responded 
the  widow,  "they  were  made  by  one  of  the  finest  dentists  in 
New  York." 

IX. 

PULLING   A  TOOTH. 

There  being  apparently  nothing  more  to  be  learned  or  ac- 
complished in  Oshkosh  Captain  Grannan  returned  to  Cincin- 
nati to  prepare  for  the  work  before  him.  His  theory  of  the 
case  had  already  been  formed.  He  would  first  visit  New  York 
and  learn  the  history  of  the  Iyibbys  and  Fagans  there.  He 
must  have  some  excuse  to  visit  the  metropolitan  dentists.  He 
went  up  to  Dr.  Woodward,  Sixth  and  Race,  an  accomplished 
dentist,  and  said: 

"Doctor,  I  want  a  tooth  drawn." 

"All  right,  sir,  take  a  seat." 

The  doctor  made  an  examination,  but  seeing  nothing 
wrong  he  said: 

"Which  tooth  is  it  you  want  extracted?" 


THE   OSHKOSH    CASE.  237 

"  Well,  I  don't  know  as  it  makes  much  difference,  this  one 
will  do  as  well  as  any,"  pointing  to  one  on  the  sub-maxillary. 
"  But  the  tooth  is  perfectly  sound." 
"  I  know  it.     That's  all  right.     You  pull  it  out." 
"  But,  my  dear  friend,  you  will  ruin  your  mouth.     I  never 
pull  a  tooth  unless  it  is  absolutely  necessary." 

"  Well,  I  insist  on  having  it  out,  and  if  you  don't  do  it  I 
will  have  to  go  some  place  else." 

After  further  remonstrance  and  assurance  that  the  Captain 
was  in  earnest,  the  sound  tooth  was  duly  extracted,  and  the 
cavity  can  be  seen  to  this  day  in  the  Captain's  mouth. 

X. 

WORKING    THE   DENTISTS. 

In  a  few  days  after  this,  Detective  Grannan  was  in  New 
York.  In  his  pocket  was  a  good  likeness  of  Mrs.  Mary  E. 
Fagan,  alias  Alice  Pierrepoint,  now  Mrs.  Simon  B.  Paige.  He 
first  called  upon  his  New  York  correspondents,  Fuller's  Detec- 
tive Bureau,  481  &  483  Broadway,  and  made  known  the  nature 
of  his  visit,  and  the  importance  of  his  case. 

Mr.  Fuller  gave  his  personal  attention  to  the  matter,  and 
worked  in  conjunction  with  Detective  Grannan,  accomplishing 
some  splendid  results.  They  first  started  out  to  visit  the  den- 
tists. Detective  Fuller  directed  their  course  to  all  the  first- 
class  artists  in  this  line,  and  Detective  Grannan  went  in  and 
buzzed  them  something  after  this  style  : 

"  Doctor,  I  want  to  get  a  tooth  inserted.  I  wish  you  would 
look  at  the  cavity  and  tell  me  how  long  it  will  take  to  do  the 
work,  and  about  what  it  will  cost." 

"All  right,  take  a  seat." 

Then  the  doctor  made  an  examination  and  stated  terms, 
etc.,  for  different  classes  of  work. 

"  Yes,  that's  reasonable.     The  time  required,   I'm  afraid, 


238  HOW   TO   PROCEED. 

may  be  too  long  for  me,  as  I  don't  expect  to  be  here  long.  I 
had  a  friend  who  had  some  elegant  work  done  here  some  time 
ago,  perhaps  a  year  or  over,  and  she  recommended  you  so 
highly — I  think  you  are  the  dentist — that  I  determined  to  call 
at  any  rate.     Mrs.  Fagan,  I  suppose  you  remember  her  ?" 

"  Fagan,  Fagan,  let  me  see;  no,  I  don't." 

"  Perhaps  this  photograph  may  freshen  your  recollection." 

A  look  at  the  photograph  brought  no  signs  of  recognition. 
Then  the  Captain  said,  "  Possibly  I  have  gotten  the  name  of 
the  dentist  wrong,  but  that  won't  matter,  as  I  like  the  appear- 
ance of  you  and  your  work,  and  if  I  find  I  have  time  for  the 
work  I  shall  certainly  come  back  here,  especially  as  it  would 
now  be  futile  for  me  to  attempt  to  find  my  friend's  dentist." 

Then  he  got  away  and  the  same  racket  was  gone  through 
time  after  time,  and  day  after  day  was  put  in  at  this  business 
until  thirty  or  more  dentists  had  been  interviewed  in  New 
York  City,  without  results.  Then  they  despaired  and  went 
over  to  Jersey  City,  and  twenty  to  twenty-five  tooth-carpenters 
of  that  town  were  put  through  the  same  catechism.  This 
work  brought  nothing.  They  then  went  over  to  Brooklyn. 
About  the  twentieth  dentist  he  struck  was  Dr.  Oran  Cobb. 

"  Mrs.  Fagan?  Oh,  yes,  I  remember  her  well.  Have  you 
come  to  pay  her  bill?  " 

"  Well,  not  exactly,"  said  the  Captain.  "  Does  this  picture 
resemble  the  lady  you  speak  of?  " 

"  That's  the  one.     That's  the  lady." 

"Do  you  know  where  she  lived?" 

"Oh,  yes.  She  lived  at  379  Pacific  Street,  in  this  city.  I 
understand  she  is  married  now,  and  married  rich  ;  they  say  a 
western  millionaire.  I  guess  she  is  abundantly  able  to  pay 
everything  she  owes  if  she  will." 

Further  talk  and  inquiry  led  Dr.  Cobb  to  refer  Detective 
Grannan  to  his  wife,  who  knew  them  much  better  than  he  did 


THE    OSHKOSH    CASE.  239 

and  who  could  no  doubt  give  him  valuable  information.  Mrs. 
Cobb  was  then  out.  Detective  Grannan  did  not  disclose  his 
real  character  or  the  nature  of  his  business,  and  promising  to 
call  further  about  the  tooth,  he  left.  Desiring  to  see  Mrs. 
Cobb  alone  he  watched  next  day  till  he  saw  the  doctor  go  out, 
then  he  went  to  the  house  and  rang. 

"Is  Dr.  Cobb  in?" 

"No,  sir,  he's  just  gone  out." 

"Is  Mrs.  Cobb  in?" 

"Yes,  sir." 

"  I  would  like  to  see  her,  please." 

He  was  asked  to  wait  in  the  parlor  till  she  came.  He  in- 
troduced himself  as  one  of  her  husband's  patients,  and  got  to 
the  subject  by  stating  that  the  doctor  had  referred  him  to  her 
as  better  posted.  She  was  very  pleasant  and  obliging.  She 
knew  Mrs.  Fagan  well.  She  had  lived  at  379  Pacific  Street, 
with  her  mother  and  sister.  Before  coming  here  they  had 
rooms  over  Mr.. Cox's  silver  plating  establishment  on  Fulton 
Avenue,  Brooklyn,"  and  also  at  Elm  Place,  a  very  aristocratic 
quarter,  and  their  house  they  had  furnished  in  very  elegant 
style.  Mrs.  Cobb  manifested  so  much  good  sense  in  the  mat- 
ter, and  was  so  courteous  and  obliging  that  Detective  Grannan 
took  her  to  a  certain  degree  into  his  confidence,  and  told  her 
something  of  the  real  nature  of  his  business,  speaking  of'  him- 
self as  an  attorney  looking  the  matter  up  in  behalf  of  the 
Paiges. 

She  was  always  true  to  the  trust  and  rendered  him  much 
valuable  service  in  his  work. 

XI. 

•    •«  ON  THE  TRAIL. 

With  the  assistance  of  Mrs.  Cobb  and  detectives,  principal 
of  whom  was  Detective  Frost,  of  64  Orange  Street,  Brooklyn, 


240  HOW   TO   PROCEED. 

Detective  Grannan  accomplished  a  great  deal  of  general  work 
on  the  case  which  was  only  preliminary  to  the  real  substantial 
work  to  be  done  later  on.  He  first  got  a  sort  of  general  out- 
line of  their  movements  in  Brooklyn  and  New  York.  While 
living  at  379  Pacific  Street,  they  rented  the  whole  house,  a 
three-story  brick,  and  sub-let  rooms.  Mrs.  Fagan  and  her  sis- 
ter, Laura  Libby,  worked  in  New  York  at  Buttrick's  pattern 
establishment.  Before  coming  to  this  place  they  had  lived  on 
Fulton  Ave.,  Brooklyn,  over  Mr.  Cox's  plating  establishment. 
Here  they  had  frequently  been  hard  up,  and  had  asked  Mrs. 
Cox  not  to  throw  any  thing  away  that  she  might  have  left 
from  the  table,  as  they  would  be  glad  to  have  it;  she  gave  them 
many  things  in  this  way. 

When  they  left  379  Pacific  Street,  they  went  to  25  Elm  Place. 
This  is  a  very  aristocratic  quarter,  and  the  question  was,  how 
could  they  get  money  to  furnish  the  house  up  in  a  style  to  cor- 
respond with  the  locality  ?  The  place  was  visited.  The  lady 
living  there  knew  nothing  of  them,  but  referred  to  the  next 
door  neighbor,  who  had  resided  there  a  long  time.  This  lady 
remembered  the  parties  well.  When  they  came  they  furnished 
the  house  in  good  style  with  new  furniture.  She  thought  they 
were  finally  put  out  of  the  house  and  the  furniture  taken 
away  from  them. 

Detective  Grannan  then  knew  they  must  have  bought  the 
furniture  on  time.  He  visited  a  number  of  furniture  establish- 
ments, selecting  those  that  sold  on  payments.  About  the 
sixth  house  he  struck  was  Carr  &  Murray's  Myrtle  Ave. 
Here  he  found  they  had  contracted  for  furniture,  curtains,  car- 
pets, and,  in  fact,  everything  to  fit  up  a  house.  They  bought 
only  the  very  best  goods.  They  represented  themselves  as  be- 
ing wealthy  and  having  considerable  money  in  the  West,  which 
they  received  in  instalments.  Their  smooth  talk  did  the  work 
and  they  got  the  stuff,  paying  only  fifty  dollars  down.     Mr. 


THE    OSHKOSH    CASE.  24 1 

Carr's  statement,  made  further  on,  is  very  interesting  reading. 

Captain  Grannan  could  not  imagine  where  they  got  the 
$50  to  pay  on  the  furniture.  He  remembered  that  he  had 
heard  talk  of  a  piano  in  Cincinnati,  but  so  far  no  trace  of  it  in 
Brooklyn  had  been  discovered.  He  visited  the  freight  offices 
of  the  proper  roads  and  discovered  that  a  piano  had  been 
shipped  from  the  west.  What  had  become  of  it?  The  piano 
houses  were  then  visited  in  regular  order,  and  finally  one  was 
found  that  remembered  the  people  and  the  piano.  They  had 
loaned  them  $75  on  the  piano.  The  name  of  the  firm  was 
Bance  &  Benedick,  56  Center  St.,  and  the  loan  was  made  Oc- 
tober 13,  1 88 1.  Other  articles  of  furniture  were  also  put  up 
here.  The  piano  was  manufactured  by  the  Grand  Round  Pi- 
ano Co.,  of  Cincinnati,  Ohio,  and  was  No.  1,020.  The  late  T. 
T.  Haydock  was  President  of  this  Company,  and  he  afterwards 
told  Detective  Grannan  that  the  piano  was  bought  of  them  on 
time,  and  when  they  moved  it  away  without  knowledge  of  the 
Company,  and  they  were  about  to  take  action  in  the  matter, 
the  affair  was  compromised  by  some  friend  of  the  Libbys. 
Thus  the  $50  was  accounted  for. 

The  reader  can  imagine  the  arduous  character  of  all  this 
work.  It  was  all  tedious  and  expensive.  Weeks  were  spent 
in  accomplishing  it  all.  Detective  Grannan  really  made  two 
or  three  trips  to  New  York  before  he  had  all  the  information 
necessary  from  that  point.  The  great  result  of  his  work  there 
he  determined  to  put  in  the  form  of  depositions  of  different 
parties.  These  depositions  contained  matter  of  the  most  damag- 
ing and  startling  character. 

XII. 

INCIDENTS  OF  THE  SEARCH. 

One  or  two  incidents  of  the  work  of  a  rather  amusing 
character  occurred   worth   relating.      Friends  of  the    Libbys 
16 


242  HOW   TO    PROCEED. 

spoke  of  a  picture  that  hung  in  the  Libby  mansion,  now  379 
Pacific  Street,  to  which  they  had  returned,  that  was  believed 
to  be  a  likeness  of  the  original  Fagan,  Mrs.  Mary  E.  Fagan's 
first  husband.  Detective  Grannan  wanted  that  picture.  He 
laid  his  plans.  They  rented  rooms.  Mrs.  Wyman,  a  very  in- 
telligent woman,  who  had  been  in  better  circumstances,  rented 
the  third  floor  rooms  back  and  front  from  the  Libbys  and  it 
was  through  her  that  he  got  most  of  his  points.  Mrs.  Wyman 
was  an  old  time  intimate  friend  of  Mrs.  Oran  Cobb.  This 
completed  the  chain. 

Detective  Grannan  took  Detective  Frost  and  went  to  in- 
quire for  rooms.  The  plan  was,  when  Grannan  got  the  old 
woman  up-stairs  to  show  the  rooms,  Frost  was  to  slip  in  and 
get  the  picture  off  the  wall.  Copies  of  it  would  be  taken  and 
the  original  returned.  They  rang.  Up,  out  of  the  basement 
came  the  dirtiest,  greasiest,  most  diminutive  and  God-forsaken 
specimen  of  feminine  humanity  that  ever  crawled  in  the  sun- 
light. It  was  old  Mrs.  L,ibby.  She  seemed  suspicious;  said 
her  rooms  were  all  full,  and  the  scheme  to  get  into  the  house 
failed  entirely.  Detective  Grannan  talked  to  her  on  different 
matters  nearly  half  an  hour  and  worked  every  racket  his  mind 
could  suggest,  but  it  was  no  go.  They  tried  it  again  some 
days  after  but  it  wouldn't  work.  Then  Detective  Grannan 
went  to  a  grocery  near  by  where  he  had  become  somewhat  ac- 
quainted, and  borrowed  a  baby.  With  this  little  thing  half 
clad,  in  his  arms,  he  again  rang  the  bell.  The  old  woman 
came,  and  he  began  talking  about  rooms.  She  had  none — 
they  were  all  full.  Then  he  pinched  the  baby  and  it  began  to 
cry,  and  he  appealed  to  her  that  his  poor  baby  was  sick  and 
cold;  please  let  him  come  in  and  warm  the  poor  thing. 
"No,  sir.  I  know  ye.  You  can't  get  in  here." 
So  he  gave  the  thing  up.  She  seemed  to  have  got  on  to 
him  some  way,  and  all  efforts  to  get  into  the  house  were  un- 
availing. 


THE    OSHKOSH    CASE.  243 

But  Mrs.  Wyman  had  seen  a  man  come  there  frequently 
who  resembled  the  picture  on  the  wall.  She  believed  it  was 
Mrs.  Fagan's  first  husband.  Detective  Grannan  was  satisfied 
that  Fagan  lived.  If  alive,  he  was  determined  to  find  him. 
Much  progress  had  been  made,  but  this  point  was  important. ' 
Fagan  must  be  found,  if  alive. 

XIII. 

THE    SEARCH    FOR    FAGAN. 

After  months  of  this  exhausting  labor  in  tracing  the  record 
of  the  Libbys  and  Mrs.  Fagan  in  the  East,  and  having  the 
affidavits  of  over  twenty  people  who  had  known  them  person- 
ally, or  had  business  dealings  with  them,  Detective  Grannan 
returned  to  Cincinnati.  He  had  a  load  of  evidence,  as  will  be 
seen  further  on,  that  would  shake  the  faith  of  a  Paul  in  all 
womankind.  He  now  determined  to  trace  down  and  find,  if 
possible,  Wm.  E.  Fagan,  whom  he  believed  to  be  alive.  He 
again  visited  the  neighborhood  in  which  the  Eibbys  had  lived 
on  Barr  street.  The  great  publicity  given  to  the  case  rendered 
it  somewhat  easier  now  to  find  people  who  knew  and  remem- 
bered them.  Almost  by  chance  he  came  upon  one,  Geo.  W. 
Ryan,  a  dealer  in  patent  medicines;  that  is,  he  furnished  agents 
with  all  sorts  of  nostrums,  and  he  knew  almost  every  street 
fakir  in  the  country.  The  Captain  became  acquainted  with 
him,  drank  and  smoked  with  him;  complained  of  rheumatism 
in  his  shoulder;  asked  if  he  knew  of  anything  that  was  good 
for  it.  Ryan  knew  a  number  of  things  and  recommended 
them. 

"  There  is  one  man  that  I  know  could  cure  me,  if  I  could 
find  him." 

"Who  is  that?" 

"  Wm.  E.  Fagan.  He  sold  Raven  Oil.  But  I  guess  he's 
dead." 


244  HOW    TO    PROCEED. 

"Dead?  Hell!  I  saw  him  not  six  months  ago.  He's  as 
live  a  man  as  you  ever  saw.     Why,  do  you  know  Fagan?" 

"  No,  I  don't  know  him,"  said  the  Captain,  "  but  I  have 
heard  frequently  of  his  oil,  and  I  believe  it  will  cure  me." 

"Why,  I  used  to  be  with  that  man  every  day,"  said  Ryan. 
"  I  remember  one  night  we  went  to  the  Grand  Opera  House, 
and  he  pointed  out  one  of  the  Pierrepoint  girls  who  was  in  the 
ballet,  and  said  she  was  his  wife.  He  said  he  could  not  live 
with  her  on  account  of  her  mother.  She  was  a  regular  old 
vixen.  But  he  loved  the  woman,  notwithstanding  she  had 
mistreated  him  and  been  untrue  to  him,  and  would  take  her 
back.  After  the  opera  was  over  we  followed  them  home.  She 
had  a  sister  who  was  with  her  in  the  ballet.  They  lived  away 
down  in  the  West  End,  some  place  on  Barr  street,  I  think. 
Next  day  he  sent  her  a  letter  with  money.  She  kept  the  money 
but  refused  to  see  him." 

"  Well,  now,  I'll  tell  you,"  said  Detective  Grannan,  "  I  am 
somewhat  interested  in  this  man,  and  would  like  to  know 
something  of  him.     Where  could  I  find  him?" 

"  I  don't  know  where  he  is  now.  Let  me  see.  I'll  tell  you 
a  man  that  ought  to  know  something  about  him.  That  is  Dr. 
Phil.  T.  Williams,  up  on  Sixth  street,  near  John.  He  treated 
Fagan  and  took  considerable  interest  in  him  I  wouldn't 
wonder  if  he  knew  just  where  he  is." 

Detective  Grannan  then  visited  Dr.  Williams.  He  had 
taken  considerable  interest  in  Fagan,  and  the  Captain  found 
no  difficulty  in  drawing  from  him  all  he  knew  in  the  case. 
Fagan  had  given  him  his  whole  history.  The  only  part  of  it 
that  we  are  particularly  interested  in  is  his  connection  with 
the  Libbys.  His  story  to  Dr.  Williams  was  something  like 
this: 

Old  man  Libby  called  himself  a  doctor.  He  made  Raven 
Oil  and  sold  it  all  over  the  country.     When  "Dr."  Libby  died, 


THE   OSHKOSH    CASE.  245 

the  enterprising  widow  and  daughters  advertised  for  some 
gentleman  of  means  to  take  charge  of  the  business  and  run  it. 
Fagan  answered  the  advertisement;  their  description  of  the 
profits  to  be  made  were  glowing  and  seductive;  he  went  in. 
He  soon  became  smitten  with  the  daughter  Mary,  and  married 
her,  Dr.  W.  thought  somewhere  in  Illinois.  They  traveled  all 
over  the  country  making  and  selling  the  oil.  Cleveland,  Pitts- 
burg, Indianapolis,  Fort  Wayne,  Louisville,  Memphis,  Cincin- 
nati, in  fact,  almost  every  important  town  in  the  country  they 
had  been  in  and  done  business.  The  old  woman  got  to  drink- 
ing and  the  girls  became  too  familiar  with  strange  men,  busi- 
ness was  neglected,  and  finally  things  got  so  bad  he  could  not 
stand  it.  In  Cincinnati  his  wife  and  her  sister  got  struck  on 
the  stage,  and  he  lost  all  influence  over  her.  In  fact,  the  old 
woman  would  not  allow  him  to  come  near  the  house.  He 
claimed  to  love  the  woman  still  but  said  the  old  woman  caused 
all  the  trouble.  With  these  pointers,  Detective  Grannan 
started  out.  He  first  went  to  Indianapolis.  He  visited  all  the 
Fagans  he  could  hear  of  within  a  radius  of  fifty  or  sixty  miles 
of  the  city,  but  could  find  no  relatives  of  Wm.  E.  Fagan. 

At  Fort  Wayne  he  found  a  man  who  knew  Fagan,  was  cer- 
tain of  it.  He  started  out  with  Detective  Grannan  to  help 
trace  him  down.  They  traveled  over  two  hundred  miles  to- 
gether tracing  their  man,  but  could  not  come  up  to  him.  Then 
the  "pointer"  gave  out,  and  the  Captain  followed  the  clews  to 
Kansas  City,  found  the  man  they  had  been  after  for  weeks, 
and  he  was  the  wrong  man. 

Then  he  struck  further  South,  visiting  Quincy,  Peoria, 
Springfield  and  Pekin.  He  found  traces.  The  Iyibbys  had 
been  there  years  before ;  had  lived  there.  He  found  some  of 
the  original  circulars  used  to  boom  the  great,  original  and  only 
Raven  Oil,  the  great  specific  for  all  ills  incident  to  humanity. 
Here  he  found  the  record  of  the  marriage  of  Mary  Libby  and 


246  HOW   TO .  PROCEED. 

William  E.  Fagan,  and  obtained  a  copy  of  the  license.  They 
were  married  on  the  9th  day  of  April,  1871,'by  the  Rev.  Jas. 
W.  Harvey,  Pastor  of  the  Methodist  Church  at  Pekin.  No- 
body knew  anything  of  them  now.  Then  he  came  East  again 
and  visited  Cleveland,  Pittsburg,  going  as  far  East  as  Harris- 
burg,  Pa.  Then  back  to  Columbus,  Xenia,  Dayton,  Zanes- 
ville  and  Toledo. 

Sometimes  he  heard  of  their  having  been  there  long  before, 
but  nobody  knew  anything  of  them  now.  Then  a  long  trip 
was  taken  almost  across  the  continent,  and  the  town  of  Santa 
Fe,  New  Mexico,  was  visited.  This  was  done  as  a  matter  of 
precaution,  as  Mrs.  Mary  E.  Paige-Fagan  had  testified  that  her 
first  husband  died  at  Santa  Fe,  Texas,  and  it  was  barely  possi- 
ble she  made  a  mistake  in  naming  the  State.  No  Wm.  E. 
Fagan  had  ever  been  there  dead  or  alive.  No  burial  permit, 
no  record  of  any  kind  of  such  a  man  could  be  found.  She  had 
lied,  which  was  pretty  certain  before. 

Detective  Grannan  then  returned  to  Cincinnati.  He  had 
in  the  meantime,  of  course,  notified  all  the  members  of  his 
company  throughout  the  country,  who  were  not  nearly  so 
numerous  then  as  now,  of  the  search  for  the  man,  and  sent 
them  descriptions.  Shortly  after  returning  home  he  received  a 
communication  from  John  B.  Axline,  a  trusted  member  at 
Nashville,  Tenn.  He  thought  he  had  the  man  located  and 
wrote  for  full  particulars.  Captain  Grannan  could  not  send  a 
photograph  but  he  had  a  most  elaborate  description,  and  gave 
instructions  how  to  positively  identify  him.  Detective  Axline 
worked  the  matter  well.  One  of  the  best  evidences  outside  of 
his  name,  which  he  did  not  attempt  to  conceal,  was  the  fact 
that  he  still  sold  Raven  Oil  on  the  streets.  Axline  became  ac- 
quainted with  him,  gained  his  confidence,  told  him  some  of 
his  own  family  troubles,  how  his  wife's  mother  had  made  his 
home  a  hell,  etc.     This  drew  Fagan  out  and  he  told  his  story. 


THE    OSHKOSH    CASE.  •  247 

It  was  right.     Then  he  made  affidavit  of  the  facts  learned  and 
sent  it  to  Detective  Grannan. 

XIV. 

AFFIDAVITS. 

A  final  trip  was  now  made  to  New  York.  A  score  or  more  of 
affidavits  were  taken  here  of  friends,  acquaintances  and  business 
associates  of  the  L,ibbys  and  Fagans.  The  Notary  who  offici- 
ated in  this  work  was  Mr.  Albert  W.  Bailey,  Attorney,  son  of 
a  retired  silk  merchant  of  the  City  of  Churches.  He  did  his 
work  thoroughly.  We  have  not  space  enough  to  give  these 
depositions  in  detail.  Only  the  salient  points  of  the  most  im- 
portant ones  follow : 

Mrs.  Wyman,  a  very  intelligent  lady,  who  had  evidently 
seen  better  times,  occupied,  as  stated,  the  third  floor  of  the 
Libby  residence.  They  used  to  visit  back  and  forth  frequent- 
ly. She  deposed  that  Mrs.  Fagan  had  told  her  that  she  was 
going  to  marry  Paige,  a  western  millionaire;  that  she  cared 
nothing  for  him,  only  for  his  money,  and  that  she  didn't  care 
if  he  died  in  an  hour  after  they  were  married.  Their  hateful 
and  cruel  disposition  was  shown  by  their  conduct  when  Mrs. 
Wyman's  little  child  lay  sick  of  scarlet  fever.  The  Libbys 
fumigated  the  house  with  sulphur  until  it  was  almost  impossi- 
ble to  live  in  their  rooms,  as  the  fumes  naturally  ascended. 
When  the  child  died,  Mrs.  Fagan  and  the  old  woman  clapped 
their  hands  when  the  little  thing  was  carried  out  to  the  hearse. 
Mrs.  Wyman  noticed  that  Mrs.  Fagan  was  growing  stout. 
Her  fleshiness  increased  and  her  visits  to  the  third  floor  de- 
creased. Isn't  there  something  the  matter?  Oh,  no,  I'm  eat- 
ing too  many  potatoes.  After  awhile,  she  was  one  day  taken 
suddenly  and  violently  ill.  Mrs.  W.  was  called  down  to  assist 
in  applying  hot  cloths.      When  she  got  up  in  a  few  days,  she 


•248  HOW  TO   PROCEED. 

was  very  pale  and  the  abdominal  superfluity  of  flesh  had  all 
disappeared — superfluous  potatoes  all  gone. 

Finally  a  large,  fine  looking  man  appeared.  The  Fagan 
children  said  it  was  their  uncle,  but  it  turned  out  to  be  Mr. 
Paige.  They  somehow  managed  to  conceal  from  him  their 
extreme  poverty.  The  wedding  took  place,  and  he  then  ate 
his  first  meal  in  the  house.  The  meal  was  eaten  in  the  base- 
ment kitchen,  on  an  old  and  extremely  plain  kitchen  table, 
covered  with  a  ragged  piece  of  oil  cloth. 

After  the  marriage  they  all  went  away,  and  soon  she  re-ap- 
peared with  the  most  elegant  clothing;  half  a  dozen  fine 
dresses,  splendid  jewelry  and  diamonds,  and  seemed  to  be  rev- 
eling in  luxury.  Mr.  Paige,  discovering  the  extreme  poverty 
of  his  new  wife,  took  her  out  and  spent  $3,000  on  her  before 
they  left  New  York.  She  always  heard  them  speak  of  Brook- 
lyn as  their  home,  and  believes  they  always  considered  it  so. 

Mr.  Cox  deposed,  among  other  things,  that  the  two  girls, 
Mrs.  Fagan  and  her  sister  Laura  went  away  every  morning 
and  came  back  at  night.  That  they  frequently  asked  for  the 
leavings  of  his  table,  and  that  the  children  of  Mrs.  F.  were  al- 
most starved.  She  told  Cox  how  she  had  laid  the  wires  to 
catch  the  western  millionaire ;  how  she  saw  an  account  of  his 
wife's  death,  and  wrote  him;  how  he  got  mashed  on  her  style 
of  correspondence  and  came  to  see  her;  she  said  she  cared 
only  for  his  money,  and  when  she  married  him  she  would  be 
rich,  and  would  buy  large  orders  of  goods  from  him,  to  repay 
him  for  his  kindness.  He  also  deposed  that  Mrs.  Fagan  made 
indecent  exposures  of  her  person  in  his  presence.  He  always 
considered  them  permanent  residents  of  Brooklyn. 

Mr.  Carr,  of  Carr  &  Murray,  furniture  dealers,  of  whom 
they  bought  the  goods  to  furnish  up  25  Elm  Place,  deposed 
that  they  represented  themselves  as  rich,  having  large  proper- 
ty west;  that  they  received  money  in  installments  and  could 


THE   OSHKOSH   CASE.  249 

pay  best  that  way ;  they  bought  several  hundred  dollars  worth 
of  furniture  and  paid  $50  cash;  when  the  payments  came  due 
they  could  not  pay.  He  bore  with  them  patiently  and  long, 
but  finally  concluded  they  never  meant  to  pay  him,  and  noti- 
fied them  that  they  must  pay  or  lose  the  furniture.  Then  Mrs. 
Fagan  took  him  into  her  parlor  and  her  confidence.  She  told 
him  her  plans;  what  she  was  trying  to  accomplish;  that  she 
was  really  poor ;  that  she  was  about  to  marry  a  western  mil- 
lionaire, and  it  was  absolutely  necessary  to  have  respectable 
furniture,  when  he  should  come  on  to  see  her. 

She  pleaded  that  they  were  already  engaged  and  as  soon  as 
the  wedding  took  place  she  would  have  plenty  of  money  and 
would  pay  him.  Seeing  that  this  did  not  meet  with  his  favor, 
she  reminded  him  that  he  was  a  single  man  and  suggested  that 
he  take  a  room  in  her  house;  she  would  be  everything  to  him 
that  a  wife  could  be,  and  would  also  amply  remunerate  him  in 
cash  when  she  married  the  millionaire.  He  refused  her  gener- 
ous offer,  as  it  required  money  to  run  his  business,  and  as  she 
could  not  pay  he  was  compelled  to  eject,  which  he  did.  He 
always  understood  that  they  came  to  Brooklyn  to  reside  per- 
manently. 

Twenty-five  or  more  other  affidavits  were  taken,  all  tend- 
ing to  show  the  bad  character  of  the  family;  the  scheme  of 
Mrs.  Fagan  to  catch  Paige,  and  the  permanency  of  their  resi- 
dence in  Brooklyn.  During  all  this  long  period  of  hard  work, 
many  opportunities  were  afforded  to  see  the  inside  of  Metro- 
politan life.  The  club  houses  and  theaters  were  frequently 
visited;  Coney  Island  and  all  the  neighboring  summer  resorts 
and  watering  places  were  taken  in,  thus  mingling  business 
with  pleasure,  having  a  good  time,  seeing  the  world  in  its  cen- 
ter of  greatest  activity;  observing  the  depths  of  crime  and 
degradation  in  the  slums,  and  the  crime  and  splendor  in  the 
gilded  halls  of  the  lascivious  rich;  an  experience  which  is  in- 


250  HOW   TO    PROCEED. 

valuable  to  a  detective — and  all  the  time  working  to  success- 
ful issue  this  great  case,  in  which  from  the  very  start  it  was 
"diamond  cut  diamond." 

With  this  mass  of  evidence  Detective  Grannan  now  re- 
ported at  Oshkosh.  The  plan  of  the  Paiges  briefly  was  to  es- 
tablish the  bad  character  of  the  woman;  to  show  that  their 
brother  had  been  the  victim  of  the  basest  deception ;  that  her 
marriage  with  him  was  in  reality  a  monstrous  fraud;  that  her 
first  husband  was  still  living,  and  that  her  divorce  from  him, 
obtained  in  Cincinnati,  was  fraudulent  and  without  warrant  of 
law,  and,  therefore,  her  marriage  with  Mr.  Paige  was  in  the 
eye  of  the  law  illegal,  and  she  was  without  just,  equitable  or 
legal  claim  to  any  part  of  his  estate ;  that  when  she  applied 
for  and  received  her  decree  of  divorce,  she  was  a  bona  fide 
resident  of  New  York,  and  under  the  law  of  Ohio  not  entitled 
to  receive  a  divorce  in  her  courts. 

XV. 

A  SLEIGH   RIDE. 

After  Detective  Grannan  had  made  his  report,  a  little  inci- 
dent occurred  of  rather  an  amusing  character  worth  relat- 
ing. C.  C.  Paige,  Attorney  Burnell  and  Detective  Grannan 
had  been  in  consultation,  and  had  gone  entirely  over  the  mass 
of  evidence  he  had  accumulated.  "Now,"  said  Grannan,  "  I 
want  to  see  this  woman.  I've  done  a  great  deal  of  work  on 
this  case,  and  have  never  seen  her ;  I  think  I  shall  go  down 
and  have  a  talk  with  her."  Both  Paige  and  Burnell  protested. 
It  would  not  do.  He  might  want  to  trace  her  in  the  future. 
Moreover,  they  didn't  believe  he  could  do  it.  She  had  grown 
reticent  and  non-communicative  of  late,  and  would  not  receive 
him. 

"Well,  I'll  go  the  oysters  for  the  party,"  said  Grannan, 
"that  I'll  not  only  see  her  and  talk  with  her,  but  take  her  but 


THE   OSHKOSH    CASE.  25 1 

sleigh  riding  before  sundown  to-night."  "  We'll  go  you,"  they 
said,  and  he  prepared  to  make  the  call.  Having  learned  her 
number,  he  rang  the  bell,  and  the  door  was  opened  by  Mrs. 
Paige,  alias  Mrs.  Fagan,  alias  Miss  Mary  L,ibby,  alias  Miss 
Alice  Pierrepoint,  in  person. 

"Have  I  the  honor  of  addressing  Mrs.  Paige?"  said  the 
bland  Captain. 

"  That  is  my  name." 

"  I  represent  the  Herald"  handing  her  a  neatly  written 
card  prepared  for  the  occasion,  "  and  would  like  to  talk  with 
you  about  your  trouble  with  the  Paiges." 

"  Yes,  take  a  seat.  I'll  tell  you  frankly,"  she  went  on, 
"  while  I  feel  quite  friendly  toward  the  Herald,  I  have  been  so 
badly  treated  by  some  of  the  papers  that  I  have  just  about  de- 
cided to  have  nothing  more  to  say  to  anybody  about  the  mat- 
ter, and  my  attorney  advised  me  the  same  way." 

"  Our  people,"  interrupted  the  Captain,  "  have  always  been 
of  the  opinion  that  the  Paiges  were  using  the  enormous  influ- 
ence of  their  wealth  and  social  position  to  defraud  you  of  your 
just  rights  in  this  matter,  and  would  be  glad  to  make  public 
your  statement  of  the  case,  feeling  that  it  is  only  simple  jus- 
tice that  your  claims  should  be  as  fully  and  fairly  understood 
as  those  of  the  other  side." 

"  I  notice  the  Herald  has  given  some  very  fair  accounts  of 
the  matter,  and  if  you  will  promise  me  not  to  publish  anything 
from  the  other  side,  I  will  give  you  my  version  of  the  story. ' 

"  We  have  already  published  all  of  their  story  that  we  ever 
expect  to,  and  I  assure  you  your  statement  will  stand  alone." 

Then  she  gave  him  a  long  account  of  the  case  from  her 
point  of  view,  much  of  which  Detective  Grannan  knew  to  be 
absolutely  false.  He  took  copious  notes.  When  she  got 
through  she  said,  "You   know   I   am   publishing   a   book?" 

"  Yes,  I  heard  you  were ;  when  will  it  be  out?" 


252  HOW  TO   PROCEED. 

"  Soon,  I  think.  My  publishers  speak  highly  of  it,  but 
said  it  needed  some  finishing  touches-;  so  I  have  written  them. 
See  here,"  producing  a  bundle  of  manuscript.  "  See  that,  'At 
last  in  the  Toils  of  the  Villian.'  That's  that  rascal  Grannan. 
Why,  he's  perjured  himself  a  thousand  times,  and  got  a  dozen 
or  more  people  in  New  York  and  Brooklyn  to  swear  to  lies,  just 
to  beat  me.  But  I'll  show  them  they  haven't  got  me  down 
yet,  and  that  man  Grannan,  I'll  have  him  in  the  penitentiary 
yet.  He's  a  slick  villain.  He's  done  enough  to  down  any 
woman  that  hasn't  pluck  and  perserverance,  but  I'll  show  him 
he  hasn't  downed  me  yet." 

Detective  Grannan  expressed  his  sympathy  and  hoped  she 
would  be  successful  in  her  suit,  and  especially  that  the  rascal 
Grannan  would  get  his  just  deserts;  said  he  was  comparative- 
ly a  stranger;  was  very  much  interested  in  her  case,  and  would 
like  to  hear  more  of  it,  etc.,  and  would  be  delighted  to  have 
her  accompany  him  in  a  sleigh-ride  around  the  city  and  point 
out  to  him  the  principal  objects  of  interest.  She  thanked  him 
and  accepted,  and  in  an  hour  they  were  flying  behind  foaming 
steeds  along  the  snow-covered  streets  of  Oshkosh.  As  he 
went  dashing  past  the  office  of  Burnell,  where  he  and  Paige 
were  waiting,  a  quiet  signal  showed  their  recognition  that  he 
had  won  the  wager.  It  is  scarcely  necessary  vo  add  that  the 
interview  never  appeared  in  the  Herald. 

XVI. 

THE  FALL. 

The  evidence  damaging  to  her  case  was  so  massive  and 
voluminous,  so  thoroughly  covering  every  point  of  her  varie- 
gated and  malodorous  career,  that  she  saw  the  futility  of  fight- 
ing it.  The  papers  got  hold  of  some  of  the  facts  and  pub 
lished  them.  She  sued  the  New  York  \\Torld  for  $250,000  for 
libel,  for  publishing  some  facts  contained    in    the   affidavits. 


THE   OSHKOSH    CASE.  253 

Hon.  Roscoe  Conkling  was  engaged  by  the  World  to  defend. 
The  Cincinnati  Commercial  was  sued  for  a  like  amount,  and 
Win.  M.  Ramsey  was  retained  as  the  defendant's  counsel. 
Neither  of  these  suits  ever  came  to  trial,  as  she  had  no  money, 
and  her  case  had  been  so  badly  crippled  that  it  seemed  hope- 
less, and  no  attorney  cared  to  take  hold  of  it  on  a  contingency. 

Under  all  these  depressing  and  discouraging  circumstances, 
this  woman  of  brilliant  conception  and  daring  execution  weak- 
ened, and  gave  up  the  contest.  The  little  bare-footed  girl  that 
earned  the  sobriquet  of  "Pop  Mary"  by  selling  popcorn  on  the 
streets  of  Davenport,  who  had  been  jostled  against  the  cold, 
heartless,  and  wicked  world  from  earliest  infancy,  who  knew 
nothing  but  scheme  to  force  a  living  out  of  the  stingy  world ; 
this  woman,  thus  demoralized,  educated  on  the  street,  in  the 
ballet,  behind  the  scenes;  with  an  amazing  adherence  to  pur- 
pose once  formed;  an  unscrupulousness  of  method  equaled 
only  by  her  malignity  of  purpose;  this  brilliant,  scheming  ad- 
venturess at  last  succumbs  to  the  superior  prowess  of  a  more 
wary,  sagacious  and  powerful  mind. 

Discouraged,  without  money,  without  hope,  she  fell  more 
suddenly  from  her  sublime  height  of  wealth  and  social  position 
than  she  had  risen  to  it;  her  career  had  been  that  of  a  magnifi- 
cent meteor,  bursting  out  brilliantly  upon  the  public  gaze, 
cleaving  the  social  horoscope  with  swift  and  dazzling  splendor 
and  sinking  ignominiously  into  the  oblivion  of  social  obloquy, 
leaving  only  a  fast  fading  recollection  of  her  unknown  origin, 
her  immoral  forces,  her  demoralizing  meridian  brilliancy,  her 
sudden  and  disastrous  fall. 

She  dropped  quietly  and  suddenly*  from  public  view,  and 
none  of  her  old  acquaintances  now  know  what  has  become  of 
her.  Let  us  hope  that  the  admirable  energy  of  this  brilliantly 
endowed  woman  has  been  directed  into  a  more  noble  channel, 
and  that  she  is  now  employing  her  mental  and  physical  forces 
to  elevate  rather  than  drag  down  mankind. 


CHAPTER  VII. 

SWINDLING  GAMES  AND  TRICKS. 

THE   devilish   ingenuity   and   fertility   of  the   depraved 
human  mind  have  produced  in  all  ages  and  countries  a 
marvelous  growth  of  schemes,  tricks,  games  and  de- 
vices for  obtaining  money  from  people  without  giving 
value  received.     In  no  age  or  country  has  the  production  of 
these  nefarious  traps  for  the  unwary  been  more  luxuriant  than 
in  the  United  States  now. 

We  design  in  this  chapter  to  give  such  description  of  the 
most  important  of  these  as  will  put  every  one  upon  his  guard. 
A  careful  study  of  the  following  pages  and  proper  regard  for 
the  principles  laid  down  will  save  many  a  man  hundreds,  per- 
haps thousands,  of  dollars. 

GENERAL  PRINCIPLES. 

It  is  an  old  and  trite  admonition,  but  a  sensible  one,  and 
we  repeat  it  here  with  emphasis:  Never  bet  on  another  man's 
game. 

The  reason  for  this  principle  is  obvious.  When  a  man 
starts  out  with  a  game  or  a  trick  of  any  kind,  he  proposes  to 
make  money.  He  takes  no  chances.  With  him  it  is  only  a 
question  of  getting  suckers  to  bite.  He  is  bound  to  come  out 
ahead.  The  sucker  is  sure  to  get  the  worst  of  it.  In  most  of 
the  games  now  practiced,  the  victim  has  no  possible  chance  of 
winning.  In  some  games  of  chance,  there  is  a  small  margin 
of  possibility  that  the  player  may  win  something,  but  the 
usual  ratio  is  from  ten  to  one  to  a  thousand  to  one  against  his 
winning  anything.  Let  these  games  alone.  No  man  that  ever 
played  them  habitually  came  out  ahead  in  the  end. 

2$4 


SWINDLING   GAMES   AND   TRICKS.  255 

Never  think  for  a  moment  that  a  stranger  is  going  to  give 
yon  money.  They  will  tell  you  this.  They  will  tell  you  that 
some  one  is  going  to  win  this  money  and  you  might  as  well 
have  it  as  anybody.  They  will  profess  a  liking  for  you  and 
say  they  would  a  little  rather  see  you  get  it  than  any  one  else. 
But  you  must  always  put  some  money  up  to  get  it.  Don't  be 
sucker  enough  to  get  caught  on  such  cheap,  improbable  talk 
as  this. 

If  you  are  fool  enough  to  play  at  another  man's  game  and 
get  caught,  as  you  surely  will,  always  "squeal."  These  public 
leeches  go  about  their  nefarious  work  on  the  theory  that  a 
man's  pride  will  prevent  him  from  reporting  his  loss  or  mak- 
ing an  outcry.  If  the  victim  promptly  and  vigorously  protests 
and  threatens  arrest,  the  chances  are  they  will  disgorge  their 
ill-gotten  gains. 

There  might  be  circumstances  when  it  would  not  be  politic 
to  attempt  to  recover  your  money.  If  you  have  been  in- 
veigled into  a  den  of  thieves  and  thugs,  desperate  men,  who 
have  swindled  you  out  of  your  money,  and  no  police  or  other 
assistance  is  at  hand,  it  would  probably  be  better  to  accept  the 
situation  and  retire  as  easily  and  gracefully  as  possible,  for  the 
chances  would  be,  if  you  should  begin  a  quarrel  for  the  return 
of  your  money  and  attempt  to  make  an  outcry,  that  you  would 
be  quickly  beaten  into  insensibility  and  thrown  into  an  alley — 
a  very  mysterious  case  of  sand-bagging  and  robbery  which  the 
police  would  never  unearth. 

But  the  best  plan  is  never  to  be  drawn  into  such  places. 
Never  take  up  with  a  strange  man  in  the  city  or  with  one  who 
claims  to  know  you,  but  whom  you  can  not  remember.  Bet- 
ter take  the  risk  of  offending  some  "old  friend  of  your  father" 
than  to  be  run  in  and  robbed  by  a  banco  shark. 

With  these  preliminary  remarks  we  proceed  to  explain  a 
few  of  the  common  games  practiced  at  the  present  time- 


256  HOW   TO   PROCEED. 

BANCO. 

This  scheme  is  familiarly  called  bunko.  As  practiced  in 
those  modern  days  it  requires  for  its  successful  operation  bold- 
ness and  cunning,  a  shrewd  insight  into  the  weakness  of  human 
nature  and  a  skillful  manipulation  of  the  keys  of  human  de- 
Sire,  that  ought  to  make  a  man  rich  in  an  honest  calling.  It 
was  introduced  into  the  mining  camps  of  California  forty  years 
ago  as  a  game  of  chance,  but  resembled  then  more  nearly  a 
modern  game  of  faro,  in  which  there  was  a  chance  of  winning 
something  occasionally.  It  has  been  entirely  changed  since  in 
its  working,  all  elements  of  chance  having  been  removed  in 
fact,  although  they  appear  to  the  player  to  be  as  strongly  in 
his  favor  as  ever.  The  "lay  out"  is  about  the  only  feature  of 
the  game  that  remains  the  same.  Without  going  into  the  his- 
tory of  the  game  further  we  will  attempt  to  give  a  description 
of  it. 

Four  men  generally  work  banco.  They  require  a  room 
with  a  table  or  desk  large  enough  to  accomodate  the  "lay  out." 
This  room  is  usually  secured  in  some  quiet  part  of  the  city  and 
is  only  taken  by  the  day  or  week,  for  as  soon  as  a  few  victims 
are  fleeced  they  usually  move  to  other  quarters.  The  furni- 
ture must  be  elegant  in  style  and  a  business-like  air  must  per- 
vade the  place.  The  appearance  must  be  strictly  first-class, 
for  they  are  after  first-class  people,  who  would  at  once  feel  out 
of  place  when  brought  into  dingy  apartments.  They  must 
have  plenty  of  money  and  give  the  impression  that  they  are  a 
powerful  financial  institution.  Some  who  play  for  smaller 
game  do  not  need  so  expensive  an  establishment. 

The  four  men  are  known  as  the  "feeler,"  the  "patterer," 
the  "scout"  and  the  "banker."  The  "feeler"  watches  the 
hotels,  ascertains  who  has  arrived,  where  from,  his  probable 
financial  condition,  and  usually  makes  the  break  at  cultivating 
his  acquaintaince.     The  "patterer"  follows  up  the  "feeler," 


SWINDLING    GAMES    AND    TRICKS.  257 

takes  his  report  and  uses  it  to  ingratiate  himself  still  further 
into  the  stranger's  confidence.  The  "scout"  is  the  outlook, 
who  keeps  the  "banker"  (who  is  the  inside  man  who  runs  the 
game)  apprised  of  the  approach  of  the  "patterer"  with  a 
victim. 

The  scheme  is  worked  then  as  follows: 

The  "feeler"  first  ascertains  the  name  of  the  party  and  his 
home.  Then  he  consults  a  Bank  Note  Reporter  or  some  pub- 
lication containing  information  about  the  banks  of  the  town 
from  which  the  stranger  comes.  He  learns  the  name  of  the 
banks  of  the  town  and  the  names  also  of  their  officers.  All  these 
he  reports  to  the  "patterer,"  who  takes  up  the  work  at  this 
point.  Sometimes  a  likely-looking  victim  is  seen  on  the  street 
by  the  "  feeler,"  and  desiring  to  start  business  or  "  raise  the 
wind  "  at  once,  he  approaches  him  with  a  familiar  air  and  ex- 
claims :  "  Why,  how  do  you  do,  Mr.  Thompson  ?  How's  the 
hardware  trade  up  in  Greenville?"  And  then  rattles  on  in  a 
familiar  way  about  half  a  dozen  things  that  his  fertile  mind 
suggests.  When  the  stranger  gets  a  chance  he  withdraws  his 
hand  from  the  friendly  grasp  of  the  gusher  and  says:  "You're 
mistaken  this  time,  young  man.  My  name  is  not  Thompson, 
but  Goodhue,  and  I'm  a  brewer  from  Singleton."  "What! 
Why,  I  can't  be  mistaken.  If  you  are  not  Thompson  you  are 
his  double.  Well,  well,  I  beg  your  pardon,  sir,  for  this  un- 
seemly familiarity  with  a  stranger,  but  I  can  scarcely  believe 
yet  but  what  you  are  my  old  friend  Thompson.  Good-day, 
sir." 

Then  the  "patterer"  who  is  always  near  at  hand  is  joined 
and  a  report  is  made.  He  takes  up  the  trail  and  watches  the 
victim  until  a  reasonable  time  has  elapsed,  so  that  the  first  in- 
cident will  probably  be  forgotten,  and  also  till  the  party  gets 
in  the  neighborhood  of  the  Banco  den  if  possible.  Then  he 
manages  to  meet  the  victim  and  exclaims:  "Why,  Mr.  Good- 
17 


258  HOW   TO    PROCEKD. 

hue,  how  do  you  do?  How  is  everybody  down  at  Singleton? 
Well,  this  is  surely  an  unexpected  pleasure." 

"You  have  the  advantage  of  me,"  falters  the  Singleton 
brewer. 

"  Why,  don't  you  remember  me,  the  nephew  of  John  Sin- 
gleton, President  of  the  First  National  Bank  of  Singleton?" 
There  is  a  shade  of  sadness  in  his  tone  at  the  thought  of  having 
been  forgotten  so  soon.  If  this  is  a  lucky  hit  he  is  soon  able 
to  convince  Mr.  Goodhue  that  he  has  met  him  before;  if  he 
shot  wide  of  the  mark  he  probably  has  more  trouble,  but  rattles 
on,  drawing  out  little  by  little  and  putting  things  together  in  a 
shrewd  way  until  he  accomplishes  his  end  and  confidence  is 
established  and  they  walk  together.  A  social  glass  is  suggested. 
If  that  is  accepted  he  steers  him  to  a  place  where  he  will  be 
properly  dosed  for  the  game.  If  the  drink  is  declined  they 
dine  together.  The  "patterer"  grows  confidential  and  tells 
him  about  his  studies— he  is  probably  attending  school — and 
his  prospects,  where  he  thinks  of  locating,  etc.  At  the  proper 
time  he  confides  to  him  that  he  has  had  a  little  streak  of  good 
luck.  That  he  took  a  dollar  of  the  last  monthly  allowance 
sent  him  by  his  uncle  John  and  invested  it  in  a  lottery  ticket 
and  it  had  drawn  a  prize;  that"  in  fact  he  was  just  on  his  way 
to  the  office  to  have  it  cashed  when  he  met  him.  He  shows 
the  ticket  and  remarks  that  he  would  be  glad  to  have  his 
friend  walk  down  with  him,  the  place  is  not  far,  and  he  would 
see  whether  there  was  anything  in  it  or  not.  This  is  interest- 
ing and  they  walk  down  to  the  den  together.  The  "patterer" 
produces  the  ticket  and  hands  it  to  the  "banker"  asking:  "Is 
this  the  place  where  these  tickets  are  cashed?" 

"If  it's  entitled  to  a  prize  it  will  be  cashed  here,"  responded 
the  banker,  with  pompous  business  air,  and  carefully  begins 
the  examination  of  a  large  docket.  Finally  he  discovers  the 
number  and  carefully  comparing  the  ticket  with  the  book  he 


SWINDLING    GAMES   AND   TRICKS.  259 

announces:  "Yes,  sir,  this  is  a  fifth  part  of  a  ticket  that  drew 
$10,000  at  our  last  drawing.  It  entitles  you  to  $2,000,  and  a 
chance  in  our  special  drawing."  Then  he  goes  to  the  large 
safe  and  gets  the  money  and  counts  it  out  to  trje  young  man, 
and  gives  him  another  ticket. 

"Not  so  bad  for  $i,"  suggests  the  "patterer"  quietly  to  the 
sucker.  "  Don't  say  anything  to  Uncle  John  about  this,  he 
might  not  like  it." 

"  That  extra  ticket  may  draw  you  as  much  more,"  says  the 
banker,  as  they  are  about  to  depart. 

"  By  the  way,"  says  the  patterer,  "  when  does  this  next 
drawing  take  place  ?" 

"  Time  is  not  fixed,  but  the  tickets  are  about  all  sold  and 
you  might  come  around  tomorrow." 

"  I'm  going  out  of  the  city  this  evening  for  a  few  days," 
says  the  "  patterer,"  "  and  can't  be  here." 

"  Perhaps  your  friend  could  attend  to  it  for  you,"  referring 
to  the  sucker. 

But  he  must  leave  for  home. 

"Couldn't  we  decide  the  matter  now?"  asks  the  bogus 
nephew. 

"  Well,  I  suppose  I  could  accommodate  you  if  you  specially 
desire,"  says  the  "  banker."  Just  step  this  way.  He  removes 
a  green  cloth  from  a  table  and  a  Banco  lay-out  is  disclosed. 
Then  inviting  the  "  patterer"  and  his  friend  to  take  seats  he 
explains  the  system.  There  are  forty-one  spaces.  Twenty-six 
draw  prizes ;  twelve  are  blanks.  Others  have  special  significa- 
tion. The  prize  numbers  pay  two  for  one  up  to  $5,000,  or 
twice  the  amount  staked.  The  "  banker "  then  produces  a 
roll  of  bills  and  a  pack  of  cards.  The  cards  are  numbered 
from  one  to  six.  The  lowest  number  on  the  cloth  is  eight,  the 
highest  forty-eight.  The  cards  are  shuffled  and  the  player 
draws  eight  cards.      The  numbers  on  these  eight  cards  are 


26o  HOW   TO    PROCEED. 

added  together  and  if  the  sum  corresponds  to  a  prize  number 
he  gets  the  double  of  his  money.  Some  numbers  are  marked 
"  re-present."  When  the  player  strikes  this  he  must  double 
his  stake.  The  "  patterer  "  draws  but  gets  a  blank.  Then  it 
is  suggested  that  if  he  adds  a  dollar  and  draws  a  prize  he  will 
get  double.  He  places  the  dollar  and  asks  Goodhue  to  draw 
for  him  as  he  seems  to  be  out  of  luck.  Goodhue  draws  and 
wins  a  prize  for  his  young  friend.  This  is  becoming  interest- 
ing. The  "  patterer  "  draws  again  and  the  "  banker  "  presents 
Goodhue  with  a  ticket  and  he  draws  and  wins  and  is  paid  his 
money  just  as  though  he  had  put  up.  He  is  getting  deeply 
interested  in  the  game.  The  "  nephew  "  suggests  that  they 
remove  some  of  their  winnings.  The  brewer  wants  to  try 
again.  Next  they  run  against  a  "  steer."  This  is  explained. 
It  entitles  them  to  double,  and  seven  "  steers  "  without  a  prize 
gives  them  back  their  money. 

"  The  number  27  is  the  '  double-steer.'  If  you  draw  that  I 
place  $500  to  the  credit  of  each  of  you.  This  remains  in  chan- 
cery until  you  have  had  seven  draws  and  if  you  should  draw 
nothing  but  "  steers  "  you  would  be  entitled  to  remove  all  the 
money  you  had  risked  and  the  $500  in  chancery  besides." 

By  manipulating  the  cards  the  number  27  is  produced,  and 
$500  placed  to  the  credit  of  each.,  Then  they  continue  draw- 
ing. The  "banker"  now  announces  that  they  must  add  six 
dollars  to  each  of  their  tickets.  The  "  patterer  "  instantly  puts 
his  up.  The  brewer  now  for  the  first  time  has  to  expose  his 
roll.  They  size  up  his  pile  and  play  on.  Soon  but  two  draws 
remain  and  it  requires  $250  to  "  re-present."  They  hesitate. 
The  "  banker  "  urges  that  the  chances  are  now  largely  in  their 
favor ;  that  they  may  not  only  recover  the  money  they  now 
have  risked  but  win  a  nice  sum  besides.  They  put  up  $250 
each,  and  play  again.  One  more  chance  remains.  It  requires 
$1,500  to  "  re-present."     It  is  put  up  or  lose  all.    The  patterer 


SWINDLING   GAMES   AND   TRICKS.  26 1 

goes  down  after  his  long  roll  of  prize  money  and  counts  out 
the  required  amount.  Goodhue  hesitates  again,  but  he  con- 
siders that  he  is  too  far  in  the  game  to  back  out  now.  Besides, 
it  is  explained  that  there  is  only  one  chance  of  losing,  and  that 
is  by  drawing  Banco,  or  number  28.  This  seldom  occurs,  the 
" banker"  says,  and  they  are  almost  sure  of  winning  the  money. 
The  brewer  puts  up.  The  draw  is  made.  The  numbers  add 
28,  and  Mr.  Goodhue,  the  wealthy  brewer  of  Singleton,  is 
"  bancoed  "  or  "  bunkoed." 

People  of  high  standing  in  their  communities  who  are 
caught  in  this  trap  are  frequently  quieted  by  threats  of  ex- 
posure. If  a  customer  becomes  too  urgent  in  his  demands  for 
the  return  of  his  money  these  villains  will  not  hestitate  to  re- 
sort to  violence.  It  is  almost  impossible  to  catch  them,  for 
they  are  constantly  changing  their  quarters. 

The  plan  of  working,  of  course,  is  subject  to  variations ; 
that  is,  the  plan  of  getting  the  sucker  into  the  den,  but  the  lot- 
tery scheme  is  always  a  part  of  it  and  the  little  lay-out  with 
numbered  cards  and  spaces  is  a  part  of  the  game.  The  lan- 
guage used  above  only  represents  a  supposed  case  and  the  talk 
and  inducements  will  of  course  be  adapted  to  the  circumstances. 
Again  we  say,  do  not  take  up  with  persons  who  seem  to  know 
you  but  whom  you  can't  remember.  And  when  any  such 
strange  person  tells  you  of  his  good  fortune  in  drawing  a  prize 
in  a  lottery,  drop  him  without  ceremony  or  delay. 

THE   SAW   DUST   RACKET. 

This  is  a  game  of  thief  catch  thief;  a  game  in  which  the 
slick  metropolitan  schemer  lures  the  country  man,  who  is  will- 
ing to  engage  in  defrauding  his  neighbors,  into  his  den  and 
fleeces  him.  The  proposition  is  to  sell  counterfeit  money  for 
about  ten  cents  on  the  dollar.  The  person  who  wants  to  pur- 
chase must  always  go  to  New  York  to  meet  the  vender  of  the 
"  green  goods."     He  makes  the  purchase,  sees  the  beautiful 


262  HOW   TO    PROCEED. 

money  put  in  a  grip  sack  and  expressed  to  his  home,  but  when 
he  gets  an  opportunity  to  examine  it  and  finds  nothing  but 
rags,  saw  dust,  old  paper,  etc.,  hence  the  name  "  saw  dust 
racket." 

New  York  is  the  headquarters  of  this  business.  From 
there  the  country  is  flooded  with  circulars.  Following  is  a 
copy  of  one  actually  sent  out  by  the.se  sharks,  and  is  a  fair 
sample  of  them  all : 

Dear  Sir: — Thinking  you  are  in  a  position  to  safely  handle 
my  "  goods,"  I  have  concluded  to  write  to  you.  If  I  have 
made  a  mistake,  do  me  no  harm,  but  let  the  matter  drop.  I 
am  willing  to  prove  myself  your  friend,  if  you  are  desirous  of 
engaging  in  this  speculation.  If  you  don't  care  to  engage  in 
it,  I  hope  you  will  excuse  the  liberty  I  have  taken  in  making 
the  proposition.  My  business  is  not  legitimate,  but  the  "goods" 
I  deal  in  are  safe  and  profitable  to  handle.  The  sizes  are  "  i's, 
2's,  5's  and  io's,"  Old  and  New  issues ;  do  you  understand.  If 
you  conclude  to  answer  this  letter,  I  will  send  you  full  particu- 
lars and  terms,  and  I  will  endeavor  to  satisfy  you  that  if  you 
are  my  friend,  I  will  prove  a  true  and  lasting  one  to  you.  If 
you  have  been  unsuccessful  in  your  business,  I  can  supply  you 
with  "  goods "  with  which  you  can  pay  off  your  debts  and 
start  free  and  clear  again.  You  can  purchase  mortgages — in 
fact,  my  goods  can  be  safely  used  the  same  as  any  "  money  " 
you  ever  handled  in  your  life.  It  was  never  intended  that  one 
man  should  have  millions  of  money  and  another  nothing,  so 
don't  throw  away  this  chance  to  make  a  fortune.  Others  have 
grown  rich  around  you  (no  one  knows  how),  so  why  not  help 
yourself.  I  manufacture  the  goods,  so  in  dealing  with  me  you 
purchase  from  first  hands,  and  no  one  shall  ever  know  what 
passes  between  us.  Answer  at  once,  as  this  address  is  only 
good  for  three  weeks,  and  be  sure  and  return  this  letter  or  you 
will  never  hear  from  me  again.     I  will  return  your  letters,  and 


SWINDLING    GAMES    AND   TRICKS.  263 

you  must  do  the  same  with  mine.  Write  to  no  one  else  about 
this  business,  for,  if  you  do,  I  am  sure  to  hear  of  it,  and  you 
will  never  get  the  "  goods."  I  do  not  think  it  safe  to  trust  a 
person  with  my  goods  who  is  willing  to  write  to  any  and  every 
one  on  such  a  subject.  As  an  evidence  of  good  faith  on  your 
part,  I  ask  you  to  send  me  all  letters  you  may  receive  in  rela- 
tion to  this  matter.  Be  sure  and  give  your  Post  Office  address, 
plainly  written.  Yours  most  sincerely. 

No  name  is  signed  to  this  letter,  but  on  a  separate  slip  is 
this  address,  T.  Tucker,  147  Delancy  street,  N.  Y. 

If  this  circular  brings  an  answer  another  is  sent  giving 
prices  at  which  the  "  goods  "  will  be  furnished.  This  second 
circular  is  usually  accompanied  by  a  clipping  from  a  news- 
paper, or  which  has  every  appearance  of  having  been  cut  from 
a  newspaper,  which  gives  an  account  of  some  Government 
plates  having  been  stolen,  and  parties  printing  money  from 
them  and  putting  it  in  circulation,  and  how  the  attempt  to 
convict  the  parties  of  passing  counterfeit  money  failed  because 
the  Government  officers  themselves  could  not  swear  that  the 
money  passed  was  really  counterfeit.  This  clipping  is  a  fraud 
as  no  such  thing  ever  occurred.  The  parties  have  a  certain 
form  set  up  like  a  newspaper  with  this  account  in  it — which 
they  manufacture  themselves,  for  this  purpose.  A  lot  of  them 
are  printed  and  this  is  cut  out  and  of  course  looks  like  a  news- 
paper clipping.  It  is  a  very  clever  trick  and  tends  to  deceive 
the  shrewdest  people  who  are  not  on  to  the  scheme.  In  this 
second  circular  also  a  fictitious  name  is  assigned  to  the  country 
man  by  which  he  is  to  be  known  in  all  future  transactions. 
He  is  urged  to  come  to  New  York.  That  is  the  only  safe  way. 
There  he  can  examine  the  "goods"  and  satisfy  himself  they 
are  all  right  before  purchasing.  Further  correspondence  fixes 
the  time  and  place  of  meeting  and  the  signal  by  which  each  is 
to  know  the  other.     Farmer  Johnson  goes  to  New  York.     He 


264  HOW   TO   PROCEED. 

meets  his  friend  who  is  to  put  him  on  the  highway  to  fortune. 
He  is  escorted  to  a  small  room  in  a  secluded  part.  Piles  of 
the  most  beautiful  new  money  are  shown  him.  Genuine  bills 
are  procured  and  compared  with  their  "  queer  goods,"  and  he 
examines  with  cautious  care,  but  can  discover  no  difference  in 
any  small  particular.  That  money  would  certainly  go  without 
detection.  They  even  suggest  that  he  takes  one  of  the  bills 
out  to  the  cigar  stand  on  the  corner  and  purchase  a  cigar  and 
see  whether  it  will  go.  He  tries  it  and  the  bill  is  accepted. 
They  sing  him  the  old  song  about  the  stolen  plates.  He  is 
convinced  and  decides  to  invest.  He  counts  out  his  good 
money,  $300,  $500,  or  perhaps  $5,000. 

They  put  up  a  package  of  their  "  goods  "  very  carefully, 
place  it  in  a  small  valise,  which  they  propose  to  present  him  to 
carry  it  in.  Just  then  some  interruption  takes  place,  perhaps 
a  knock  at  the  door.  "Hist!  quiet  boys.  See  who  that  is, 
John." 

The  little  grip  is  quickly  hidden  beneath  the  desk  by  the 
main  operator^  the  door  is  opened ;  only  an  express  messenger 
with  a  package.  The  book  is  receipted  and  he  gone.  The 
little  grip  is  withdrawn  from  its  hiding  place.  Then  they  ad- 
vise him  to  express  it  to  his  own  address,  as  the  .safest  way  of 
transmitting  it.  He  falls  in  with  their  suggestions.  Why  not? 
Are  they  not  his  friends?  Are  they  not  painting  the  horizon 
of  his  future  a  rosy  hue,  and  filling  his  dreams  with*  broad 
acres  of  fertile  land,  upon  which  graze  hundreds  of  the  fattest 
cattle?  Has  he  not  at  their  command  slept  on  downy  couches 
in  the  magnificent  mansion  of  a  prince  and  dreamed  of  fiery 
steeds  with  elegant  equipage,  happy  wife  in  silk  and  diamonds, 
and  beautiful  children  proud  of  their  station?  What  are  the 
few  paltry  hundreds  he  left  with  his  friends?  True,  'tis  his  all,  at 
least  it  was  his  all  when  he  left  home;  but  now  safely  locked  in 
that  little  satchel  and  speeding  on  their  way  to  his  rural  home, 


SWINDLING   GAMES   AND  TRICKS.  265 

by  the  fastest  and  safest  express  are  thousands  in  place  of  his 
hundreds ! 

He  is  impatient  to  get  home.  At  home  he  is  impatient  to 
get  to  the  express  office.  Finally  he  is  there.  He  gets  the 
valise,  yes,  the  same  one — ah,  you  precious  treasure!  Now 
where  shall  he  go  to  feast  his  eyes  alone — yes,  he  must  be 
alone.  Others  must  not  know  of  his  suddenly  acquired  wealth. 
It  might  excite  suspicion.  They  would  not  suspect  the  spurious 
character  of  the  goods  he  carried,  for  it  was  in  every  respect 
the  same  as  Uncle  Sam  turned  out,  but  he  had  been  away,  and 
they  might  think  he  had  stolen  it.  He  steps  briskly  along  the 
street  with  the  step  of  a  millionaire  proprietor.  Smith,  the 
honest  groceryman,  is  standing  in  his  door,  and  greets  him  as 
he  passes:  "  Helloa!  Smith,  how's  business?"  with  a  tone  of 
familiar  superiority. 

"  Oh,  dull  enough,"  says  honest  Smith. 

"  Guess  ye  want  to  sell  out.  Well,  I'll  come  down  some  of 
these  days  and  give  you  a  bid." 

"  Make  me  a  bid!  "  says  Smith,  to  himself.  "  He  couldn't 
buy  a  hencoop  if  there  was  a  rooster  in  it." 

But  where  can  he  go?  Up  stairs?  No,  that  won't  do;  the 
children  will  surely  follow  him.  There's  the  woodshed,  but 
John,  the  oldest  boy,  is  just  getting  in  the  wood  for  the  night. 
That  is  given  up.  Ah,  the  barn  ;  that's  the  place,  and  he  lets 
himself  in  without  being  discovered.  Old  Tommy  greets  him 
with  a  whinny,  which  startles  him.  At  any  other  time  he 
would  have  rewarded  the  faithful  animal  with  a  handful  of  oats 
and  a  gentle  caress,  but  now  he  feels  like  cursing  him.  He 
creeps  stealthily  to  the  hay-mow  loft  and  seeks  an  obscure 
place  in  the  extreme  rear,  where  the  rays  of  the  setting  sun 
come  straggling  through  a  convenient  pigeon  hole  in  the 
boards.  Now  all  is  quiet,  and  he  hastens  to  feast  upon  his 
treasure.     He  takes  the  tiny  key  from  his  pocket,  cautiously 


266  HOW   TO   PROCEED. 

he  inserts  it  in  the  small  key-hole  and  carefully  turns.  The 
felicity  of  anticipation  now  restrains  his  eagerness.  Deliber- 
ation takes  the  place  of  haste.  Why  hurry  the  climax  ?  Here 
is  happiness  in  anticipation;  in  just  being  about  to  realize. 
But  if — but  no,  it  can't  be.  What  silly  thought  is  this  ?  Didn't 
I  see  the  money  put  in  the  satchel,  and  the  satchel  locked  ? 
And  didn't  I  express  it  myself?  And  here  it  is.  I'm  a  sim- 
pering idiot.  I  hope  the  key  won't  click  when  it  turns.  Now 
carefully. 

A  slight  noise  announced  the  bolt  had  shot.  "  I  wonder 
what  I  shall  do  with  all  this  money  ?  It  won't  do  to  keep  it 
all  about.  Why,  that  looks  funny ;  that  package  got  turned 
over.  Darn  my  skin,  it's  busted.  Come  out  here,  old  fellow. 
You're  a  little  joker  to  tease  a  man  this  way.  Ha,  ha,  (a  sickly 
laugh),  what  tricks  these  express  companies  do  play  with  one's 
valuables.  Why,  I  didn't  see  that  bundle  of  rags  put  in  there. 
Geminy !  but  those  fellows  do  pack  a  thing  carefully !  Well, 
the  great  Caesar,  look  at  the  saw  dust.  They  must  have 
thought  it  would  break.  I  guess  the  package  is  right  under 
that.  Great  guns !  what  a  pile  of  old  paper !  Where's  the 
package  ?  " 

Great  beads  of  sweat  now  stand  out  on  his  forehead.  His 
hand  trembles  as  it  dives  to  the  bottom  of  the  satchel.  A  fear- 
ful, sickening  apprehension  seizes  him ;  his  heart  almost  stands 
still;  a  convulsive  shudder  passes  over  him.  He  is  frantic.  He 
turns  the  satchel  upside  down.  Its  worthless  contents  are  be- 
fore him.  Frantically  he  claws  in  the  hay  for  the  semblance 
of  one  little  bill.  Alas,  it  is  not  there. 
—  Poor  man.  He  has  attempted  to  do  a  criminal  thing,  and 
he  is  the  first  one  to  suffer  himself.  His  all  is  gone.  There  is 
no  recourse.  The  courts  will  give  him  no  redress,  because  he 
was  engaged  in  an  unlawful  act. 

The  fact  is  the  New  York  parties  had  not  a  dollar  of  coun- 


SWINDLING    GAMES   AND   TRICKS.  267 

terfeit  money.  These  fellows  don't  deal  in  counterfeit  money 
at  all.  The  money  they  have  is  all  good,  but  they  never  sell 
any  of  it  for  ten  cents  on  the  dollar.  They  get  the  dishonest 
farmer's  good  money  and  give  nothing  in  return.  The  ex- 
press messenger  who  came  with  a  package  was  one  of  the 
gang  fitted  out  for  the  occasion.  When  the  little  grip  was 
hastily  thrown  under  the  table  which  stood  against  the  wall,  a 
confederate,  in  the  adjoining  room,  opened  a  secret  panel  in 
the  wall  and  changed  the  grip  for  another,  its  duplicate,  ex- 
cepting contents.  The  dishonest  sucker  knows  nothing  of  the 
change  until  he  is  a  thousand  miles  away,  and  then  in  nine 
cases  out  of  ten  they  can't  tell  how  the  trick  was  done.  It 
may  not  be  an  express  messenger  who  comes,  any  interrup- 
tion will  do  to  frighten  them  into  hiding  the  grip  for  a  few  mo- 
ments. Some  opportunity  is  always  made  in  a  natural  way  for 
changing  the  grip. 

Now  the  question  may  arise  in  the  minds  of  some  moralists 
whether  farmer  Johnson  is  worthy  of  any  sympathy.  That 
we  will  not  discuss.  We  have  no  sympathy  for  a  man  who  in 
preparing  to  defraud  his  neighbors  and  friends  gets  caught 
himself.  There  is  one  thing  certain,  farmer  Johnson,  or  any 
other  man  who  attempts  this  thing,  has  no  standing  whatever 
before  the  courts.  The  old  legal  maxim,  "  He  that  comes  into 
court  must  do  so  with  clean  hands,"  applies  here.  There  is  no 
redress  for  a  man  beaten  in  this  game. 

A  word  of  advice  to  everybody  on  the  saw  dust  racket : 
Don't  imagine  for  a  moment  that  you  can  catch  these  fellows, 
for  you  can't  do  it.  The  smartest  detectives  in  the  country 
have  tried  it  and  invariably  got  the  worst  of  it.  They  have 
plenty  of  ready  money,  in  many  cases  have  the  police  sub- 
sidized, can  produce  all  the  evidence  necessary  to  overwhelm 
all  the  testimony  any  stranger  may  be  able  to  bring  and  will 
always  get  the  person  who  attempts  to  catch  them  into  serious 


268  HOW   TO   PROCEED. 

trouble.  Don't  be  criminal  sucker  enough  to  bite  at  their 
fraudulent  criminal  proposition.  Let  them  severely  alone  and 
you  will  be  safe. 

THREE   CARD    MONTE. 

This  is  an  old  game  and  one  of  the  "dead  sure"  kind.  Or- 
dinary playing  cards  are  generally  used,  any  three  being  taken. 
The  operator  often  pretends  to  be  a  greenhorn,  and  says  he 
saw  some  "city  chaps"  throwing  the  cards  around  and  he  is 
just  trying  to  see  if  he  could  do  it.  The  cards  are  bent  slight- 
ly from  end  to  end  toward  the  face,  making  a  trough  where 
they  lie  face  up  and  enabling  the  operator  to  catch  them  easily 
between  thumb  and  finger  when  face  down.  The  faces  are 
shown  to  the  victim  and  then  they  are  thrown  rather  careless- 
ly from  hand  to  hand  over  each  other  back  and  forth,  and  the 
sucker  is  asked  to  pick  out  one.  Suppose  the  cards  are  the 
ace,  deuce  and  trey  of  hearts,  the  ace  to  be  selected.  The  ace 
is  shown,  then  thrown  down  on  the  table  and  all  are  passed 
back  and  forth  a  few  times.  The  sucker  is  asked  to  pick  out 
the  ace.  He  makes  a  selection  and  gets  the  ace.  The  player 
probably  says  he  can't  get  on  to  the  way  that  fellow  did  it. 
"Now,  I've  got  'em  fixed.  Now  I'll  go  you  half  a  dollar  you 
can't  pick  it."  The  sucker,  who  has  been  watching  the  cards 
closely,  and  knows  where  the  ace  is,  bets  half  a  dollar  and 
picks  the  ace.  The  player  seems  discomfited,  but  says  he  will 
try  it  again.  "Now,  I'll  go  you  $20  you  can't  pick  it."  The 
sucker,  who  has  still  been  watching  the  cards  and  knows  just 
as  well  this  time  where  it  is  as  he  did  before,  puts  up  his  twen- 
ty and  draws — not  the  ace — no,  not  this  time.  He  gets  the 
deuce  or  the  trey  this  time.  Of  course,  the  fool  took  the 
sharper  for  a  sucker,  but  he  got  the  worst  of  it  himself.  It  is 
one  of  the  cleverest  accomplishments  of  these  rascals  to  act 
the  sucker. 

Now  the  reason  the  real  sucker  was  so  sure  he  could  pick 


SWINDLING    GAMES    AND    TRICKS.  269 

the  ace  was  because  he  discovered  that  one  corner  of  it  was 
slightly  turned  up,  thus  distinguishing  it  from  the  others.  He 
thought  the  manipulator  of  the  cards  was  so  green  or  lacking 
in  common  observation  that  he  did  not  see  it.  But  that  was  the 
very  bait  set  to  catch  him  with.  When  he  drew  to  win  twen- 
ty the  corner  of  another  card  was  turned  up  just  like  the  ace 
had  been  and  the  ace  card  was  as  smooth  as  when  it  was  made. 
It  requires  very  clever  and  dexterous  manipulation  of  the 
fingers  to  accomplish  this,  but  these  fellows  that  follow  it  for  a 
living  become  very  expert — it  is  impossible  to  detect  them 
fixing  the  cards. 

This  game  is  not  always  played  by  a  man  representing 
himself  as  a  greenhorn.  Frequently  at  county  fairs  and 
shows  it  is  played  right  out  for  all  there  is  in  it,  generally  in 
some  secluded  spot  or  any  place  where  there  are  no  officers 
around.  As  soon  as  two  or  three  people  are  fleeced  they  pick 
up  and  move  away. 

The  player  always  has  two  or  three  confederates,  who  come 
up  and  start  the  game  and  win  money,  then  the  suckers  see 
how  easy  it  is  and  bite. 

Never  bet  on  another  mail's  game. 

SHELL  WORKERS. 

This  is  a  variation  of  Three  Card  Monte.  Little  cup- 
shaped  shells  are  used,  the  half  of  the  hull  of  an  English  wal- 
nut being  generally  employed.  A  little  pill  of  composition  used 
in  making  rollers  for  printing  presses  is  the  "mascotte"  of 
this  game.  A  box,  a  barrel  head,  or  any  level  surface  where  a 
small  crowd  can  be  attracted,  will  suffice  for  the  game.  The 
little  ball  is  rolled  around  and  covered  first  by  one  shell,  then 
by  another.  "Pick  out  the  shell  that  the  ball  is  under  for  ten 
dollars,"  says  the  head  worker.  A  confederate  comes  up  be- 
side the  sucker  and  says:  "That  looks  easy.  We  can  beat 
that.     I'll  go  halfers  with  you  and  we'll  make  a  little  stake." 


270  HOW    TO    PROCEED. 

The  sucker  bites.  They  put  up  their  money  and  turn  the 
shell.     The  ball  is  not  there. 

This  game  is  worked  so  cleverly  that  many  people  are 
caught  who  have  been  amply  warned,  and  some  who  under- 
stand the  principle  of  the  game  have  even  been  fooled.  When 
you  look  at  the  manipulation  of  the  shells  and  see  how  easy  it 
is,  notwithstanding  this  warning,  you  will  think,  "It  must  be 
there.  It  can't  be  any  place  else.  I'd  bet  all  I  have  or  ever 
expect  to  be  worth  that  I  can  pick  the  shell  it's  under."  Hold 
on,  young  man.  Don't  be  too  sure.  Those  men  are  playing 
to  win  your  money  and  they'll  get  it  as  sure  as  you  put  it  up. 
Let  us  warn  you  particularly  against  this  game.  It  is  the 
most  seductive  and  most  dangerous.  Don't  touch  it  under  any 
circumstances — you  are  sure  to  lose  your  money. 

The  fact  is,  the  ball  is  not  under  any  of  the  shells  at  the 
time  the  selection  is  made.  By  a  very  quick  and  skillful 
movement  of  the  shell  and  the  little  finger,  they  "cop  it  out," 
and  the  poor  sucker  has  no  chance  at  all  of  winning.  Still 
they  are  so  dexterous  in  handling  the  little  ball  that  they  can 
pick  up  any  shell  at  any  time  and  show  you  that  it  is  under  it. 
But  if  you  pick  it  up  for  money  it  is  not  there. 

Never  bet  on  another  matCs  game. 

CONFIDENCE    GAME. 

There  is  a  bold  and  daring  scheme  played  on  wealthy 
farmers  nowadays  for  big  money,  that  is  usually  called  a  confi- 
dence game.  It  embraces  the  features  of  a  confidence  game, 
and,  according  to  the  plan  recently  adopted,  winds  up  with  the 
serious  crime  of  robbery.  Two  men  usually  work  it.  To  the 
farmer  they  appear  to  have  no  connection  with  each  other 
whatever.  They  always  work  farmers  who  have  a  healthy 
bank  account. 

A  gentleman  who  has  the  appearance  of  a  prosperous  bus- 
iness man  makes  his  appearance  at  the  farm  house.     He  is 


SWINDLING    GAMES    AND    TRICKS.  271 

probably  in  a  carriage,  drawn  by  a  fine  team  of  horses.  He 
has  driven  out  from  the  county-seat  town  and  is  looking  for  a 
farm.  He  may  have  some  other  business,  but  these  fellows 
generally  want  to  buy  a  farm.  He  engages  the  farmer  in  con- 
versation, is  exceedingly  agreeable,  and  apparently  a  gentle- 
man in  every  respect.  He  is  well  informed,  too,  on  farm  top- 
ics, and  talks  intelligently  on  all  subjects.  The  farm  is  looked 
over.  The  stranger  is  asked  in  to  dinner.  His  horses  are  put 
up  and  fed.  He  likes  the  appearance  of  everything  very 
much.  But  they  can  not  agree  on  the  price.  He  goes  away, 
and  probably  next  day  comes  back  again.  They  always  take 
plenty  of  time  in  working  this  game.  Three  or  four  days,  or 
a  week,  may  be  spent  in  this  way,  until  Mr.  Farmhunter  has 
come  to  be  quite  a  favorite  at  the  farm  house.  He  don't  make 
any  loose  or  slip-shod  bargain  for  the  farm.  He  usually  drives 
a  very  close  and  business-like  bargain,  and,  in  some  instances, 
they  have  shown  themselves  exceedingly  well  posted  about 
the  rights  of  the  purchaser  of  a  farm. 

When  the  proper  time  comes  a  second  stranger  appears 
upon  the  scene,  meeting  the  farmer  and  his  pseudo-purchaser 
at  a  convenient  time  and  place.  There  is  no  telling  what  his 
talk  will  be  about,  or  what  his  pretended  business  in  the  com- 
munity is.  They  are  not  long  togethes  until,  upon  some  pre- 
text, a  game  of  cards  is  proposed.  The  first  man  probably 
advises  the  farmer  that  they  have  nothing  to  do  with  him. 
Still,  as  a  matter  of  curiosity,  they  look  at  what  he  has.  He 
begins  to  play  his  little  game,  and  it  looks  simple  and  easy. 
The  first  comer  is  tempted  to  draw  once  just  for  fun — no 
money  put  up.  He  draws  the  winning  card.  Sometimes  if 
the  farmer  understands  it  an  ordinary  game  of  draw  poker  is 
played.  Any  game  will  do  upon  which  they  can  bet  money. 
The  farmer  is  finally  drawn  into  the  play  and  makes  some 
small  winnings,   then   he   loses  some,  then   wins  again,   and 


272  HOW    TO    PROCEED. 

keeps  on  winning  and  the  Stranger  keeps  on  putting  up 
more  money — his  pile  seems  inexhaustible.  The  game  is 
getting  interesting  now.  The  farmer  has  won  several  hundred 
dollars.  Of  course  he  hasn't  taken  it  in  yet,  but  it  lies  there  in 
front  of  him.  It  is  his;  he  has  won  it.  Then  the  last  comer 
begins  to  grow  desperate  at  his  losses  and  stakes  more  largely 
than  ever,  pulling  great  rolls  of  bills  from  his  pockets.  The 
farmer's  eyes  bulge  out  at  the  sight  of  all  that  money.  "  If 
my  luck  continues,"  he  says.  And  it  does  continue.  He 
loses  occasionally,  but  his  winnings  keep  growing.  A  thous- 
and dollars  is  now  in  the  pile.  But  the  reckless  gambler  puts 
up  more. 

"Oh,  I  always  could  play  a  pretty  stiff  hand  at  poker,"  the 
old  man  says.  "Why  I  remember  one  time  when  I  was  a  boy, 
jist  a  comin'  up  to  a  man  like,  down  to  Zeke  Higginbottom's, 
we  got  to  playin'  a  little  game,  a  cent  ante,  I  guess  it  wus,  an' 
I  had  wonderful  good  luck,  jest  knocked  'em  all  out,  but  law 
sakes,  that  wus  nothin'  like  this.  Seems  a  pity  like  to  take  all 
this  man's  money." 

"That's  all  right,  old  man,  if  you  win  my  money  square,  I 
never  kick,  it's  yours.      Here  goes  to  win  all  back  or  lose  all." 

The  play  goes  on  biggef  than  ever.  The  pile  now  contains 
$2,000.  Still  the  bets  increase,  and  still  the  old  man's  luck 
runs  on.  Now  $3,000,  $4,000  in  the  pile.  The  gambler  in 
desperation  empties  his  pockets  and  counts  down  his  last 
thousand.  "I  stake  it  all,"  he  says,  "on  that  play.  I'll  win  or 
go  broke." 

The  cards  are  run  and  the  old  man  wins. 

"By  zounds,  the  most  wonderful  run  of  luck  I  ever  saw." 
says  the  gambler. 

"  I  congratulate  you  on  your  good  fortune,"  says  the  farm 
purchaser. 

"Now,  old  man,"  says  the  gambler,  "when  I  lose  I   never 


SWINDLING    GAMES    AND   TRICKS.  273 

squeal.  Here's  the  money.  You've  won  it  and  it  is  yours." 
And  he  picks  it  up  to  count  it  over.  "  But  you  must  remem- 
ber," he  went  on,  "that  you  haven't  put  up  any  money  against 
mine.  I  played  my  good  cash  against  your  word.  Now,  I 
might  have  won  from  you,  and  I  think  it  no  more  than  right 
and  fair  before  I  turn  this  money  over  to  you  absolutely  that 
you  give  me  some  evidence  that  if  I  had  won  $5,000  from  you 
as  you  have  from  me  that  you  could  pay  me.  I  don't  want  to 
play  my  good  money  against  wind.  Can  you  show  up 
$5,000?" 

The  old  man  hesitates  and  the  farm  purchaser  says  he 
thinks  that  is  fair.  Then  the  old  man  says  that  he  hasn't  got 
the  money  in  the  house  but  if  he  was  in  town  he  could  get  it. 
So  it  is  arranged  that  they  go  to  town  in  order  that  he  may 
show  up  his  money,  to  satisfy  this  man  that  if  he  had  won  it 
from  him  he  could  have  paid. 

The  farm  purchaser,  being  an  outside  third  party,  is  prob- 
ably entrusted  with  the  custody  of  the  $5,000  the  old  man  has 
won  until  the  matter  is  settled.  They  manage  to  select  some 
secluded  place  along  the  way  where  the  farmer  is  to  show  up 
his  money.  In  recent  times,  the  next  step  has  been  one  of 
bold  robbery,  slugging  or  sand-bagging  the  old  farmer  and 
taking  his  money  from  him.  Formerly,  possession  of  it  was 
obtained  upon  some  strategy,  as  for  the  purpose  of  counting  it, 
the  farm  purchaser  probably  being  entrusted  with  this  duty. 
Possession  once  obtained  of  the  money,  the  pair  lose  no  time 
in  getting  away.  Having  a  swift  team  they  drive  rapidly 
across  the  country,  striking  the  railroad  at  some  small  station 
about  train  time,  which  they  manage  to  know,  and  leaving  the 
team,  take  the  train  and  are  many  miles  away  before  the  alarm 
is  raised. 

Only  a  few  men  in  the  country  are  working  this  racket, 
but  they  are  the  boldest  and  cleverest  rascals  out  of  jail.  Ev> 
18 


274  HOW  TO   PROCEED. 

ery  farmer  should  look  out  for  this  very  alluring  and  danger- 
ous trick.  In  it  success  means  failure — you  seem  to  win,  yet 
lose  all.  And  these  men  will  not  hesitate  at  taking  human 
life  if  necessary  when  it  comes  to  getting  the  money. 

THREE   BOXES   OF   CANDY. 

A  common  trick,  worked  usually  on  trains,  is  the  candy 
box  trick.  It  is  generally  worked  by  train  boys  or  young  men 
representing  themselves  as  in  the  employ  of  the  news  com- 
panies who  have  the  privilege  of  selling  books,  fruits,  confec- 
tions, etc.,  on  the  train.  It  is  scarcely  necessary  to  say  that 
the  sharpers  who  work  this  racket  have  no  connection  with 
the  news  company,  or  if  they  have,  their  nefarious  business  is 
done  without  the  knowledge  or  consent  of  the  company.  Of 
course  this  may  be  worked  any  place,  but  the  train  seems  pe- 
culiarly adapted  to  it. 

The  fellow  pretends  to  be  selling  candy  and  offers  prizes. 
He  has  little  boxes  like  trochee  boxes,  the  lid  of  which  en- 
circles the  box  and  the  box  slides  in  and  out  of  the  lid. 
Twenty,  thirty  or  more  dollars  in  bills  are  placed  in  a  box  on 
top  of  the  candy.  The  victim  sees  the  money  placed  in  the 
box,  and  observes,  too,  that  the  box  is  soiled  and  one  end  is 
slightly  rubbed  giving  it  a  whitish  appearance,  the  green  color- 
ing being  rubbed  off.  This  he  of  course  considers  an  oversight 
of  the  candy  man  and  a  sure  pointer  to  the  location  of  the  box 
with  the  money.  Three  boxes  are  used  in  playing  this  trick, 
all  alike  in  size,  shape  and  color,  except  the  one  defect  noted. 
They  are  shuffled  over  and  held  out  to  the  sucker  with  the 
proposition  that  he  can  have  the  chance  of  drawing  the  box 
with  thirty  dollars  in  it  for  ten.  He  has  watched  the  shuffling 
closely,  which  is  usually  done  rather  clumsily,  and  knows  that 
the  box  with  the  money  and  the  whitened  end  is  on  the  bot- 
tom. That  is  like  picking  up  thirty  dollars  in  the  street.  He 
just  goes  a  tenner  on  that  and  pulls  the  bottom  box  with  the 


SWINDLING    GAMES    AND   TRICKS.  275 

whited  end.  When  he  opens  it  up  and  finds  half  a  dozen 
little  pieces  of  cheap  candy  his  eyes  hang  out  on  his  cheeks. 

The  whitened  end  was  the  trap  set  to  catch  him.  The 
money  was  placed  in  the  box  and  the  box  was  on  the  bottom, 
but  the  top  box  had  a  whitened  end  exactly  like  the  bottom 
one  but  it  was  toward  the  operator  and  the  sucker  had  never 
seen  it.  When  he  momentarily  took  his  eyes  off  the  boxes  to 
get  his  money  the  boxes  were  turned  over  endwise,  the  top 
box  coming  on  the  bottom  and  presenting  apparently  the  same 
whited  end  to  the  sucker  that  he  had  seen  before.  But  the 
money  was  not  there. 

If  the  sucker  had  seen  the  change  in  position,  and  at- 
tempted to  select  the  top  box  with  the  money,  he  would  not 
have  been  permitted  to  do  so.  Some  objection  would  have 
been  raised,  the  boxes  would  have  been  suddenly  struck  by  a 
confederate,  and  knocked  out  of  the  operator's  hands,  or  some- 
thing would  have  occurred  to  prevent  him  from  getting  the 
money.  They  never  allow  an  outsider  to  win  any  money, 
whether  he  is  onto  their  game  or  not.  So  we  say,  Never  bet 
on  another  man's  game. 

BOOK   GAME. 

Very  similar  to  the  candy  box  trick  is  one  worked  with 
books.  It  is  a  train  trick  and  worked  by  apparent  newsboys. 
They  say  that  the  Company,  in  order  to  encourage  the  sale  of 
this  book,  has  offered  a  number  of  cash  prizes,  and  intimate  to 
the  sucker  that  by  a  little  clever  manipulation  they  can  control 
the  distribution  of  these  prizes  to  a  certain  extent,  and  they 
would  like  to  see  him  get  one,  etc.  Then  they  put  bills  in  a 
book  and  use  these  books,  all  alike,  on  the  same  plan  as  the 
boxes. 

Don't  be  sucker  enough  to  think  that  any  stranger  wants 
to  put  money  into  your  hands  for  nothing. 


276  HOW    TO    PROCEED. 

BEE    HIVE   OR    HAPHAZZARD. 

A  common  game  about  country  fairs,  picnics,  shows,  etc., 
is  the  old  haphazzard  racket.  This  is  played  with  a  machine 
shaped  something  like  a  conical  bee  hive.  It  is  a  cone  shaped 
arrangement  standing  on  its  base,  and  in  the  sides  at  appar- 
ently irregular  intervals  are  driven,  or  fastened,  nails  or  pins. 
At  the  bottom,  around  the  base,  is  a  trough,  and  leading  off 
from  this  little  stalls  which  are  numbered.  If  a  marble  is 
dropped  on  the  top  of  the  cone  it  will  start  down  the  side, 
striking  the  pins  and  jumping  from  one  to  another,  and  finally 
land  in  the  trough  at  the  bottom,  and  go  into  some  one  of  the 
little  numbered  stalls.  Some  of  these  numbers  draw  prizes, 
others  do  not. 

This  is  another  sure  thing  game.  No  outsider  ever  draws 
a  prize.  A  very  slight  movement  in  the  position  of  the  ma- 
chine will  make  it  draw  prizes  or  blanks  at  will.  This  is  done 
without  attracting  any  attention,  as  though  to  arrange  it  in  its 
position.  Confederates  put  up  their  money  and  draw  hand- 
some returns.  Suckers  put  up  their  money  and  draw  nothing 
but  experience,  who  "  teaches  a  dear  school."  The  old  adage 
says,  "  but  fools  will  learn  in  no  other." 

STRAP   GAME. 

A  sure  thing  game,  of  a  dangerous  character,  is  worked 
with  a  soft  leather  strap  about  half  an  inch  wide  and  two  feet 
long.  The  strap  is  cut  even,  and  is  soft  and  pliable.  The 
strap  is  first  doubled  in  the  middle,  bringing  the  two  ends  to- 
gether. The  parts  are  then  pressed  flat  together  and  the 
double  strap  is  rolled,  beginning  at  the  end  where  the  strap  is 
doubled  and  rolling  together  closely  in  a  tight  roll  towards  the 
loose  ends.  In  the  center  of  the  roll,  when  finished,  can  be 
seen  the  little  loop  that  begins  the  roll.  In  fact,  if  you  look 
closely,  there  are  two  little  loops  there  exactly  alike,  formed  by 


SWINDLING    GAMES    AND   TRICKS.  277 

doubling  the  strap  over  itself  and  it  is  impossible,  almost,  to 
tell  which  one  really  begins  the  roll.  The  completed  roll  is 
laid  down  on  a  table  or  other  surface,  but  still  held  in  the  hand 
of  the  operator,  and  the  proposition  is  made  that  the  sucker 
can  not  insert  his  pencil  or  other  sharp  pointed  instrument  in 
the  strap  or  loop  in  such  a  way  as  to  be  inside  the  strap  when 
it  is  unrolled.  It  should  be  observed  that  as  the  st^ap  is  rolled 
up  the  outside  piece,  having  the  larger  circumference  to  reach 
around,  appears  to  grow  shorter,  and  the  two  ends  will  not 
be  together,  sometimes  being  half  the  circumference  of  the 
roll  apart.  Now,  don't  imagine  that  you  can  catch  the  loop, 
for  you  can't  do  it  when  you  have  any  money  up.  You  might 
catch  it  when  there  is  nothing  at  stake  but  never  when  they 
don't  want  you  to  catch  it.  The  reason  is  that  the  operator 
controls  that  matter  entirely  and  absolutely.  He  can  make 
you  catch  it  or  miss  it  at  will.  It  is  done  by  the  manner  of 
unrolling  the  strap  and  depends  entirely  upon  the  end  of  the 
strap  that  he  begins  to  unroll  with.  The  ends  being  uneven 
he  can  begin  with  either  one  and  the  other  must  come  along. 
A  few  trials  with  this  will  make  the  explanation  plain.  Don't 
bet  on  it.     You  cant  beat  it. 

FLIM  FLAM  RACKET. 

It  is  scarcely  worth  while  to  explain  this  racket,  because  a 
man  is  always  caught  on  it  before  he  knows  it,  and  hence 
warnings  do  no  good.  It  is  always  played  on  merchants  and 
dealers,  saloon-keepers  being  favorite  victims.  Two  fellows 
come  into  a  saloon  and  call  for  beer.  It  is  drawn  and  placed 
before  them.  One  fumbles  in  his  pocket  as  though  feeling  for 
change,  but  not  finding  any  hands  out  a  five  dollar  bill.  The 
saloon  keeper  changes  the  bill  and  gives  him  back  $4.90. 
Just  then,  as  he  is  counting  down  the  change,  the  fellow  says: 
"Oh,  never  mind,  just  give  me  back  that  bill,  here  is  the 
change."     The  saloon-keeper  returns  for  the  bill  and  brings  it 


278  HOW   TO   PROCEED. 

back  and  they  put  down  a  dime  for  the  beer.  While  he  was 
gone  for  the  bill,  the  $4.90  in  change,  which  he  left  on  the 
counter,  has  been  transferred  to  their  pockets.  He  hands  back 
the  bill  and  takes  the  dime.  Perhaps  some  third  party,  a  con- 
federate, comes  in  at  this  moment  and  calls  for  a  drink  at  the 
other  end  of  the  bar,  which  distracts  his  attention  and  adds  to 
the  confusion  in  the  saloon-keeper's  mind.  While  he  is  wait- 
ing on  the  other  party  the  first  two  walk  out,  $4.80  and  two 
beers  ahead.  The  saloon-keeper  may  never  think  of  it  again, 
or  he  may  discover  it  in  counting  up  his  cash,  or  it  may  come 
to  his  mind  in  thinking  the  matter  over,  but  in  any  of  these 
events  it  is  too  late. 

"Well,  I  never  would  get  caught  on  a  trick  like  that,"  we 
hear  some  one  say.  We  hope  not  truly,  but  remember  that 
many  very  clever  business  men  have  been  caught  on  that  same 
simple  little  trick,  and  they  will  continue  to  be  caught  on  it  for 
all  time  to  come. 

The  only  advice  to  be  given  on  this  subject  is  one  of  busi- 
ness caution.  Always  be  careful  in  making  change.  Finish 
up  one  deal  before  you  begin  another. 

ANOTHER  FLIM  FLAM. 

All  swindles  in  making  change  of  money  are  called  Flim 
Flam.  A  very  common  form  is  worked  at  shows.  Outside 
ticket  agents  stand  at  some  distance  from  the  show  in  the  di- 
rection in  which  the  crowds  come,  to  accommodate  the  people 
with  tickets  who  desire  to  avoid  the  rush  at  the  ticket  wagon. 
They  are  not  employed  by  the  show  people  to  do  this,  neither 
do  they  get  a  percentage  from  the  show  on  the  tickets  they 
sell.  The  truth  is  they  pay  the  proprietors  of  the  show  a 
goodly  sum  for  the  privilege  of  standing  there  and  selling  the 
tickets,  and,  of  course,  they  buy  the  tickets  from  the  show 
people  themselves  at  the  regular  rate.  They  make  their  money 
by  swindling  people  in  making  change.     They  have  what  they 


SWINDLING    GAMES   AND    TRICKS.  279 

call  "flash  bills."  This,  we  will  suppose,  is  a  five  dollar  note, 
folded  up  rather  .small  and  in  a  peculiar  way.  It  is  "palmed," 
or  held  in  the  harjd  concealed.  The  shark  must  wait  his  op- 
portunity, which  comes  when  some  young  dude,  or  perhaps 
better,  an  old  man  whose  sight  is  not  very  good,  comes  along 
and  offers  a  ten  dollar  bill  in  payment  for  his  tickets.  He 
takes  the  bill,  folds  it  up  carefully  and  exactly  like  the  other 
concealed  bill  is  folded.  This  he  does  in  full  view  of  the  vic- 
tim. Perhaps,  just  as  he  gets  it  folded  up,  he  will  say, 
"Haven't  you  something  smaller  than  this,  old  man?"  If  the 
old  man  finds  smaller  change  he  hands  a  folded  bill  back  to 
him  and  takes  the  small  change,  giving  him  as  many  tickets  as 
he  asks  for.  If  he  has  not  smaller  change  he  goes  down  into 
his  pocket  and  gives  him  change  for  a  five  dollar  note,  say  four 
dollars  in  change  and  two  tickets  at  fifty  cents  each. 

"  Why,  I  gave  you  a  ten  dollar  bill,"  says  the  old  man. 

"  I  beg  your  pardon,  sir,  you  did  not.  You  gave  me  a  five 
dollar  bill.  You  saw  me  fold  it  up  here  plainly  and  here  it  is, 
the  only  bill  I  have." 

"  Well,  ihat's  funny,"  says  the  old  ,man,  "I  was  sure  that 
was  a  ten  dollar  bill." 

"Well  you  see  plainly  with  your  own  eyes  that  it  is  not," 
says  the  sharper,  "and  so  that  settles  it."  And  he  begins  call- 
ing out  his  tickets  again,  and  the  crowd  pushes  the  old  couple 
along  and  they  go  off  wondering  how  that  was.  It  was  simply 
a  slight  of  hand  performance  by  which  the  ticket  seller  substi- 
tuted his  prepared  five  for  the  old  man's  ten,  and  cheated  him 
out  of  five  dollars.  If  the  old  man  finds  smaller  change  when 
he  asks  him  to  do  so,  he  hands  him  back  the  prepared  five  and 
the  victim  probably  puts  it  in  his  pocket  and  never  looks  at  it. 
so  certain  is  he  that  it  is  the  same  bill  that  he  handed  him.  If 
he  looks  at  it  he  settles  him  the  same  way  as  before. 


28o  HOW    TO    PROCEED. 

DOUBLE  BILL  FLIM  FLAM. 
Another  method  of  flim-flaming  is  as  follows:  The  victim 
presents  say  a  twenty  dollar  bill  to  purchase  two  tickets  to  the 
show.  The  shark  gives  him  his  tickets  and  counts  out  his 
change  thus:  "  five,  ten,  fifteen  and  two  are  seventeen  and  two 
are  nineteen."  The  old  man  probably  puts  it  in  his  pocket 
without  counting  it  over  again  as  he  has  seen  it  counted  out  so 
carefully  right  into  his  hand.  But  when  he  happens  to  exam- 
ine it  he  will  find  it  five  dollars  short.  The  shark  has  one  of 
the  bills  doubled  around  his  fingers  in  a  peculiar  way  so  that 
when  he  withdraws  his  hand  from  counting  the  change  to  the 
old  man  the  bill  returns  with  it  and  he  is  five  dollars  ahead. 
In  the  first  place  never  present  a  large  bill  to  these  show  people, 
or  any  one  connected  with  them,  or  to  any  one  who  travels 
about  over  the  country  and  is  not  to  be  found  in  the  same 
place  two  days  at  a  time.  If  you  have  large  bills  go  to  a 
bank  or  responsible  merchant  and  get  change  and  present  the 
proper  amount  for  the  tickets.  In  the  second  place  if  you 
must  take  change  from  the  ticket  seller  always  count  it  at 
once  and  in  his  presence.  And  when  you  present  a  note  call 
his  attention  to  the  fact  that  it  is  a  ten  or  a  twenty  as  the  case 
may  be. 

SNIDE   AUCTION    HOUSES. 

In  every  large  city  there  is  a  class  of  sharks  who  run  snide 
jewelry  auctions.  There  is  a  crier  and  two  or  three  cappers 
standing  around  to  give  the  appearance  of  a  crowd.  The  crier 
will  be  making  a  much  bigger  noise  than  the  size  of  the  crowd 
would  seem  to  justify.  We  have  not  time  or  space  to  go  into 
a  detailed  description  of  these  places.  They  are  rank  frauds 
and  we  say  to  our  country  friends,  keep  out  of  them.  They 
work  especially  for  strangers  from  the  country.  In  the  first 
place  their  stuff  is  worthless,  and  if  by  chance  you  should  buy 
a  watch  or  other  article  that  had   any   value,   it   would   be 


SWINDLING   GAMES   AND   TRICKS.  28 1 

changed  on  you,  before  you  would  get  possession  of  it,  for  a 
similar  appearing  article  worth  nothing.  Don't  imagine  you 
can  beat  them — you  can't  do  it.  Let  them  alone.  Keep  out 
and  you  are  safe.  If  you  want  to  buy  a  watch  go  to  a  re- 
sponsible dealer  and  pay  a  fair  price.  These  sharks  are  not 
going  to  give  you  something  for  nothing. 

SOAP   RACKET. 

At  country  fairs,  picnics,  etc.,  sharp  fellows  sell  soap,  or 
sometimes  boxes  of  pen  points,  said  to  contain  cash  prizes. 
These  are  clever  slight  of  hand  performers  and  arrant  swind- 
lers. No  outsider  ever  draws  a  prize.  When  you  see  some 
one  buy  a  box  of  soap  and  get  a  five  dollar  note  in  it  you  may 
know  that  he  is  a  confederate.  They  fold  the  money  up  before 
your  eyes,  place  it  carefully  in  a  box  and  drop  the  box  into  the 
large  box  containing  perhaps  several  hundred  boxes  of  pens  or 
soap  as  the  case  may  be.  But  you  are  deceived.  The  money 
did  not  go  in.  You  may  open  every  box  in  the  pile  and  you 
can't  find  so  much  as  a  five  cent  piece.  They  are  not  giving 
away  money.  They  are  there  to  make  money,  and  every 
sucker  that  bites  at  their  bait  will  get  caught.  If  you  want 
soap  go  and  buy  it,  and  don't  think  that  five  dollar  bills  grow 
on  trees,  that  people  can  give  them  away  so  liberally.  Don't 
try    to   get  something  for  nothing.     Don't  be  a  sucker. 

RING    DROPPING. 

This  is  an  old  trick  practiced  in  England  a  hundred  years 
ago  but  still  in  vogue  in  some  places.  The  swindler  and  his  ac- 
complices having  the  sucker  in  tow  find  or  pretend  to  find  on 
the  street  or  in  some  convenient  place  a  little  package  which 
upon  being  opened  is  found  to  contain  a  valuable  ring  and  a 
receipted  bill  for  "a  rich,  brilliant  diamond  ring"  is  wrapped 
around  it.  They  do  not  want  to  carry  the  ring  with  them, 
being  of  so  great  value,  and  the  offer  to  leave  it  in  the  sucker's 


282  HOW   TO   PROCEED. 

safe  at  his  place  of  business  if  he  will  deposit  with  them  some 
money  or  his  watch  or  both  as  security.  The  ring  is  worthless 
and  he  is  swindled,  for  he  never  sees  them  again. 

RINGING   THE    CHANGE. 

A  trick  of  passing  counterfeit  coin  which  makes  it  appear 
that  some  one  else  is  the  person  doing  it.  The  shark  runs  a 
fruit  stand  perhaps,  or  other  small  business.  A  person  conies 
up  to  buy  a  nickel's  worth  of  peaches,  and  gives  him  half  a 
dollar  to  pay  for  them.  The  shark  vender  looks  closely  at 
the  half  dollar,  bites  it,  rings  it  on  the  counter,  and  hands  it 
back  to  the  purchaser  with  the  remark  that  it  is  bad.  The 
purchaser  gives  him  other  money  and  departs  with  a  counter- 
feit half  dollar  in  his  pocket.  This  is  only  a  little  slight  of 
hand  trick  by  which  the  slick  vender  substitutes  a  bad  coin, 
which  he  has  "palmed"  in  his  hand  waiting  for  the  oppor- 
tunity, for  the  good  coin  which  the  purchaser  presents  in  pay- 
ment. The  sucker  wonders  where  he  got  that  coin  and  why 
he  never  noticed  it  before,  as  it  is  palpably  bad. 

There  are  other  schemes  and  tricks  for  swindling  unsus- 
pecting people,  but  most  of  them  will  be  found  tox  be  some 
variation  of  the  ones  we  have  attempted  to  explain  here.  It 
should  be  remembered  that  these  schemes  are  not  always 
worked  in  the  exact  way  we  have  described.  These  fellows, 
are  full  of  resources,  always  adapt  themselves  to  circumstances, 
and  vary  the  plan  according  to  necessity. 

We  believe  if  the  principles  and  instructions  laid  down  here 
are  followed  that  the  readers  of  this  book  will  be  saved  many 
thousands  of  dollars.  We  can  only  add:  Don't  imagine  when 
you  see  one  of  these  games  that  you  are  smarter  than  any  body 
else  and  can  beat  it,  for  you  can't.  Let  them  alone.  Don't  bet 
on  another  man's  game.     Don't  be  a  sucker. 


THe  LftW  OF  BUSINCSS. 


CHAPTER  I. 

MEANING  OF  LEGAL  TERMS. 


AMensa  et  Thoro. — From  bed  and  board.     Not  an  ab- 
solute divorce.     (See  Divorce.) 
A  Vinculo  Matrimonii. — From  the  bonds  of  mat- 
rimony.    Absolute  divorce. 
Abate. — To  stop;  to  put  an  end  to;  as  to  end  a  suit  by  the 
death  of  a  party  to  it.     More  commonly,  to  put  away  or  cause 
to  be  removed;  e.  g.,  to  abate  a  nuisance. 

Abettor. — One  who  promotes  or  procures  the  commission 
of  a  crime.  (See  Accessary.)  A  person  to  be  an  abettor  must 
be  present  and  participate  in  the  commission  of  the  crime. 

Abortion. — The  expulsion  of  the  foetus  from  the  uterus  so 
early  after  conception  that  it  has  not  acquired  the  power  of 
sustaining  independent  life.  That  is  before  the  expiration  of 
the  sixth  month.  If  before  the  expiration  of  the  sixth  week  it 
"is  usually  called  miscarriage.  Abortion  may  be  brought  about 
by  innocent  means:  as  disease,  nervous  temperament  of  mother, 
great  debility,  excessive  venereal  indulgence,  etc.;  or  by  crimi- 
nal means:  as  emetics,  cathartics,  emenagogues,  or  external 
violence  to  the  abdomen  or  loins,  or  the  introduction  of  instru- 
ments into  the  uterus,  which  frequently  produces  the  death  of 
the  mother  as  well  as  of  the  foetus.  If  the  woman  dies  in  con- 
sequence of  the  use  of  instruments  or  drugs  to  procure  an 
abortion  it  is  murder. 

283 


284  THE    LAW   OF   BUSINESS. 

Abscond. — To  depart  in  a  secret  manner  from  the  jurisdic- 
tion of  the  court,  or  to  lie  concealed  in  order  to  avoid  process. 

Acceptance. — Receiving  anything  with  the  expressed 
purpose  of  retaining  it;  acceptance  of  a  draft  or  bill  of  ex- 
change is  entering  into  an  agreement  to  pay  it  when  it  falls 
due.  It  is  done  by  writing  the  word  "Accepted"  across  the 
face  of  the  draft  when  it  is  presented. 

Accessary. — One  who  is  not  the  chief  actor  in  the  perpe- 
tration of  the  offense,  nor  present  at  its  performance,  but  is 
some  way  concerned  therein,  either  before  or  after  the  fact 
committed. 

Accessary  Before  the  Fact. — One  who,  though  absent  at 
the  time  of  the  crime  committed,  yet  procures,  counsels  or 
commands  another  to  commit  it. 

Accessary  After  the  Fact. — One  who,  knowing  a  felony  to 
have  been  committed,  receives,  relieves,  comforts  or  assists 
the  felon. 

Accident. — In  Equity.  An  unforeseen  event,  misfortune, 
loss,  act  or  omission  which  is  not  the  result  of  any  negligence 
or  misconduct  in  the  party. — Bouvier. 

Accommodation  Paper. — Promissory  notes  or  bills  of  ex- 
change made,  accepted  or  endorsed  without  any  consideration. 

Accomplice. — One  who  is  in  some  way  concerned  in  the 
commission  of  a  crime,  though  not  as  principal. 

Acknowledgment. — The  declaration  before  a  competent 
officer  or  court  of  a  person  who  has  executed  a  deed,  that  it  is 
his  free  act. 

Administrator. — A  person  authorized  by  court  to  man- 
age and  distribute  the  estate  of  an  intestate,  or  of  a  testator 
who  has  appointed  no  executor,  or  when  the  executor  declines 
to  act. 

Adult. — Any  person,  of  either  sex,  who  is  twenty-one 
years  old  or  more. 


MEANING   OF   LEGAL  TERMS.  285 

Affidavit. — A  statement  or  declaration  in  writing  and 
sworn  to  or  affirmed  before  some  officer  who  has  authority  to 
administer  an  oath.  It  differs  from  a  deposition  in  this,  that 
in  taking  a  deposition  the  opposite  party  has  an  opportunity  to 
cross-examine  the  witness;  the  affidavit  is  always  ex-par te. 

Alias. — (Another?)  Applied  to  a  writ  issued  where  one  of 
the  same  kind  has  been  issued  before  in  the  same  case. 

Alias  Dictus. — (Otherwise  called?)  In  its  common  use  this 
term  is  contracted  to  "alias"  and  means  "otherwise  called." 
It  is  most  commonly  applied  to  criminals  who  sail  under  sev- 
eral different  names,  as  John  L,arney,  alias  "Mollie  Matches." 

Alibi. — (Elsewhere?)  Presence  in  another  place  than  that 
described. 

Alien. — A  foreigner,  one  of  foreign  birth,  who  has  not 
been  naturalized. 

Alimony. — The  allowance  which  a  husband  by  order  of 
court  pays  to  his  wife,  who  lives  apart  from  him,  for  her  main- 
tenance. It  may  he  pendente  lite,  i.e.,  during  trial,  or  perma- 
nent, i.  <?.,  during  their  joint  lives  after  termination  of  suit. 

Amnesty. — An  act  by  the  government,  granting  oblivion 
of  past  offenses,  or  immunity  from  the  penalty  that  would 
legally  follow,  generally  upon  condition  that  the  offender  re- 
turn to  duty  within  a  certain  period. 

Animo. — With  intention. 

Animus. — The  intention  with  which  an  act  is  done. 

Annuity. — A  yearly  sum  stipulated  to  be  paid  to  another 
in  fee,  or  for  life  or  years. 

Answer. — A  defense  in  writing,  made  by  a  defendant,  to 
the  charges  contained  in  a  bill  filed  by  the  plaintiff  against 
him. 

Appeal. — The  removal  of  a  cause  from  a  court  of  inferior 
to  one  of  superior  jurisdiction,  for  the  purpose  of  obtaining  a 
review  and  re-trial. 


286  THE    LAW   OF    BUSINESS. 

Appearance. — A  coming  into  court  as  party  to,  a  suit, 
either  as  plaintiff  or  defendant.  In  civil  suits  it  may  be  in 
person  or  by  attorney.  x  . 

Appellant. — One  who  appeals  from  one  jurisdiction  to 
another. 

Apprehension. — The  capture  or  arrest  of  a  person  on  a 
criminal  charge. 

Arbitration. — The  investigation  and  determination  of 
differences  between  contending  parties,  by  one  or  more  unof- 
ficial persons,  chosen  by  the  persons  and  called  arbitrators  or 
referees  (sometimes  arbiters). 

Arbitrator,  Arbiter. — See  Arbitration. 

Aristocracy. — A  form  of  government  in  which  a  class  of 
men  rules  supreme. 

Arraign. — To  call  a  prisoner  to  the  bar  of  the  court  to 
answer  to  the  matter  charged  in  the  indictment;  upon  being 
arraigned  he  is  called  upon  to  plead  guilty  or  not  guilty  to  the 
charge. 

Arrest. — Apprehending  a  person  and  detaining  him  in 
order  that  he  may  be  forthcoming  to  answer  an  alleged  or  sus- 
pected crime. 

Arson. — The  malicious  burning  of  the  house  of  another. 
"House"  includes  barn,  stable,  cow-house,  dairy-house,  etc. 

Articles  of  Agreement. — A  written  memorandum  of 
the  terms  of  an  agreement. 

Assassination. — A  murder  committed  treacherously,  by 
surprise  or  secret  assault. 

Assault. — An  unlawful  offer  or  attempt  with  force  or  vio- 
lence to  do  a  corporal  hurt  to  another. 

Assets. — All  the  stock  in  trade,  cash  and  all  available 
property  belonging  to  a  merchant  or  company. 

Assignment. — A  transfer  or  making  over  to  another  of 
the  whole  of  any  property,  real  or  personal,  in  possession  or  in 
action,  or  of  any  estate  or  right  therein. — Bouvier. 


MEANING   OF    LEGAL   TERMS.  287 

An  assignment  is  a  transfer  by  writing  and  not  by  delivery. 

Assignee. — One  to  whom  the  transfer  is  made. 

Assignor. — One  who  makes  the  transfer. 

Assumpsit. — An  undertaking,  either  express  or  implied,  to 
perform  a  parol  agreement. 

Attachment. — A  writ  issued  by  the  court  commanding 
the  sheriff,  or  other  proper  officer,  to  attach  the  property, 
rights,  credits  or  effects  of  the  defendant  to  satisfy  the  de- 
mands of  the  plaintiff. 

Attest. — To  witness  an  instrument  in  writing,  as  a  deed 
or  lease,  by  signing  one's  name  to  it  to  prove  it  and  identify 
it.     The  person  doing  this  is  called  an  attesting  witness. 

Attorney. — One  who  acts  for  another  by  appointment. 

Attorney-at-Law. — An  officer  in  a  court  of  justice  who 
is  employed  by  a  party  in  a  cause  to  manage  it  for  him. 

Bailee. — The  one  to  whom  personal  property  is  delivered 
under  contract  of  bailment. 

Bailiwick. — The  jurisdiction  of  a  sheriff. 

Bailment. — A  delivery  of  something  of  a  personal  nature 
by  one  party  to  another,  to  be  held  according  to  the  purpose 
or  object  of  the  delivery,  and  to  be  returned  or  delivered  over 
when  that  purpose  is  accomplished. — Bouvier. 

Bailor. — One  who  bails  a  thing  to  another. 

Bankable  Paper. — Bank  notes,  checks,  notes  and  other 
securities  for  money  received  as  cash  by  banks  where  the  term 
is  used. 

Bar. —  To  action.  A  perpetual  destruction  of  the  action  of 
the  plaintiff.  An  ordinary  claim  in  the  form  of  an  open  ac- 
count is  barred  in  Ohio  in  six  years. 

Barratry. — A  fraudulent  breach  of  duty,  or  willful  act  of 
known  illegality,  on  the  part  of  a  master  of  a  ship,  in  his 
character  of  master,  or  of  the  mariners,  to  the  injury  of  the 
owner  of  the  ship  or  cargo,  and  without  his  consent.     It  in- 


288  THE    LAW   OF   BUSINESS. 

eludes  every  breach  of  trust  committed  with  dishonest  views, 
as  by  running  away  with  the  ship,  sinking  or  deserting  her, 
or  embezzling  the  cargo. 

Bastard. — One  born  of  an  illicit  connection  and  before 
the  lawful  marriage  of  its  parents.  One  begotten  and  born  out 
of  lawful  wedlock.  A  man  is  a  bastard  if  born  before  the  mar- 
riage of  his  parents,  but  he  is  not  a  bastard  if  born  after  their 
marriage,  although  begotten  before.  A  man  is  a  bastard  if 
born  during  coverture  under  such  circumstances  as  to  make  it 
impossible  that  the  husband  of  his  mother  can  be  his  father, 
as  if  the  husband  has  been  absent  on  a  sea  voyage  for  twelve 
months  prior  to  his  birth. 

A  man  is  a  bastard  if  born  beyond  a  competent  time  after 
coverture  has  ceased,  as  twelve  months  after  the  death  of  the 
husband  or  after  divorce.  Most  of  the  States  provide  that  if 
a  man  marry  a  woman  after  she  has  borne  children  for  him, 
that  fact  legitimates  the  children. 

Battery. — An  unlawful  beating  or  other  wrongful  physi- 
cal violence  or  constraint,  inflicted  on  a  human  being  without 
his  consent. 

Benefit  of  Clergy. — The  exemption  of  the  persons  of 
clergymen  from  criminal  process  before  a  secular  judge.  The 
privilege  was  extended  in  England  to  all  who  could  read,  such 
persons  being,  in  the  eye  of  the  law,  clerici,  or  clerks.  The 
privilege  was  abridged  and  modified  by  various  statutes,  and 
finally  abolished  in  the  reign  of  George  IV. 

Bequeath. — To  give  personal  property  to  another  by  will. 

Bequest. — Something  in  the  form  of  personalty  left  by 
will  to  another. 

Bigamy. — The  state  of  a  man  who  has  two  wives,  or  of  a 
woman  who  has  two  husbands  living  at  the  same  time.  If 
more  than  two  wives  or  husbands  the  proper  term  is  polyg- 
amy. 


MRANING  OF  LEGAL  TERMS.  289 

Bill. — A  complaint  in  writing,  addressed  to  the  chancellor 
or  court  in  equity. 

Bill  of  Exceptions. — A  written  statement  of  objections 
to  the  decision  of  the  court  upon  a  point  of  law.  It  must  be 
made  by  a  party  to  the  cause  and  properly  certified  by  the 
judge  or  court  who  made  the  decision. 

Bill  of  Exchange. — A  written  order  from  one  person  to 
another,  directing  the  person  to  whom  it  is  addressed  to  pay  a 
third  person  named  therein  a  certain  sum  of  money. 

Bill  of  Lading. — A  memorandum  in  writing  signed  by 
the  captain  or  master  of  a  Vessel,  or  by  the  carrier  or  agent  by 
land,  that  he  has  received  certain  goods,  specified,  at  time  and 
place  stated,  which  he  promises  to  deliver  in  like  good  con- 
dition as  received  to  the  consignee,  at  the  place  therein  named, 
said  consignee  paying  freight  for  the  same.  A  bill  of  lading 
is  assignable  by  endorsement  and  the  assignee  is  entitled  to 
the  goods  subject  to  certain  liens. 

'  Bill  of  Sale. — A  written  agreement  under  seal  by  which 
one  person  transfers  his  right  to  or  interest  in  his  personal 
property  to  another. 

Birth. — The  act  of  being  wholly  brought  into  the  world. 
The  whole  body  must  be  brought  into  the  world  and  detached 
from  the  mother,  and  after  this  the  child  must  be  alive.  The 
circulating  system  must  be  changed — the  child  must  have  an 
independent. circulation.  It  is  not  necessary  that  the  umbilical 
cord  be  separated.  That  may  still  connect  the  child  with  its 
mother  and  yet  the  other  conditions  of  life,  circulation,  breath- 
ing, etc.,  being  present,  the  killing  of  it  would  be  murder. 

Black-Mail. — In  modern  use  the  extortion  of  money  from 

a  person  by  threats  of  accusation   or  exposure.     The   term 

originated  in   England  and  was  first  applied  to  those  rents 

which  were  paid  in  grain  or  labor.     They  were  called  black- 

19 


2go  THE   LAW   OF   BUSINESS. 

mail  (reditus  nigri)  in  distinction  from  white  rents  (blanche 
firmes)  which  were  paid  m  silver. 

The  bands  of  marauders  that  infested  the  borders  of  Eng- 
land and  Scotland  about  the  middle  of  the  sixteenth  century- 
levied  contributions  yearly  from  the  inhabitants  for  alleged  se- 
curity and  protection.     This  was  called  black- mail. 

Bona  Fide. — In  good  faith;  honestly. 

Bond. — An  obligation  in  writing,  under  seal.  It  is  usually 
for  the  payment  of  money  upon  certain  conditions  as  the  mal- 
feasance in  office  of  the  party  for  whose  good  conduct  the 
bondsmen  vouch,  or  the  failure  of  a  prisoner  to  appear  in  court 
for  trial. 

Bottomry. — A  contract  in  the  nature  of  a  mortgage  by 
which  the  owner  or  master  of  a  ship  borrows  money  for  the 
use  of  the  ship  on  a  specified  voyage  and  pledges  the  ship  as 
security  for  the  payment.  The  rate  of  interest  is  high  and  if 
the  ship  is  lost  at  sea  the  lender  loses  his  money. 

Breach. — The  violation  of  a  contract,  obligation,  engage- 
ment or  duty.  . 

Breach  of  the  Peace. — The  offense  of  disturbing  the 
public  peace. 

Breach  of  Trust. — The  willful  misappropriation,  by  a 
trustee,  of  a  thing  which  had  been  lawfully  delivered  to  him  in 
confidence. 

Breaking  Doors. — Forcibly  removing  the  fastenings  of  a 
house  so  that  a  person  may  enter.  An  officer  armed  with  a 
warrant  for  the  arrest  of  a  person  charged  with  a  felony  may 
"break  doors"  and  use  necessary  force  to  secure  the  felon. 

Bribery. — The  receiving  or  offering  any  undue  reward  by 
or  to  any  person  whomsoever,  whose  ordinary  profession  or 
business  relates  to  the  administration  of  public  justice,  in  order 
to  influence  his  behavior  in  office,  and  to  incline  him  to  act 


MEANING  OF  LEGAL  TERMS.  29 1 

contrary  to  his  duty  and  the  known  rules  of  honesty  and  in- 
tegrity.— Coke. 

The  term  bribery  is  now  much  broader  and  includes  the 
offense  of  giving  a  bribe  to  many  other  officers. 

Buggery. — See  Sodomy. 

Bullion. — Uncoined  gold  or  silver  in  the  mass. 

Burglary. — The  breaking  and  entering  the  house  of  an- 
other in  the  night  time  with  intent  to  steal  or  commit  a  felony. 

Canon  Law. — A  body  of  ecclesiastical  law,  which  origi- 
nated in  the  Church  of  Rome,  relating  to  matters  of  which  that 
church  claims  jurisdiction. 

Capias. — A  judicial  writ,  directing  the  sheriff  to  take  the 
person  of  the  defendant  into  custody.  The  meaning  of  the 
word  capias  is  "that  you  take."  It  came  to  denote  the  whole 
class  of  writs  by  which  a  defendant's  person  was  to  be  arrested, 
because  it  was  the  first  word  of  distinctive  significance  in  the 
writ. 

Capital  Crime. — One  for  which  the  punishment  of  death 
is  inflicted.  The  word  "capital"  is  derived  from  the  Latin 
caput,  capitis,  meaning  head;  capital  punishment  originally 
meant  (and  in  France  and  some  other  countries  does  yet) 
"punishment  of  the  head."  The  head  of  the  condemned  was 
cut  off  by  the  axe  or  sword,  but  since  1792  by  an  instrument 
called  the  guillotine. 

Carte  Blance. — (White  paper.)  Unlimited  authority. 
The  signature  of  one  or  more  persons  on  a  white  paper,  leaving 
space  over  the  names  for  a  note  or  other  writing,  which  some 
one  is  authorized  to  fill  up.  Notes  and  checks  are  frequently 
signed  in  blank  and  are  binding  on  the  party  signing  them,  but 
the  blank  must  be  filled  up  by  the  very  person  authorized. 

Castration. — The  act  of  gelding  or  depriving  of  the  tes- 
ticles. When  performed  maliciously  upon  a  man  it  is  mayhem 
and  punished  generally  in  this  country  by  fine  and  imprison- 
ment. 


292  THE   LAW   OF   BUSINESS. 

Casualty. — Inevitable  accident. 

Cause  of  Action. — Matter  for  which  an  action  may  be 
brought. 

Caveat. — hi  Patent  Law.  A  legal  notice  not  to  issue  a 
patent  of  a  particular  description  to  any  other  person  without 
allowing  the  caveator  opportunity  to  establish  his  priority  of 
invention. 

Caveat  Emptor. — (Latin — let  the  purchaser  take  care.) 
Used  generally  in  the  sale  of  personal  property  without  any 
express  warranty. 

Certified  Check. — A  check  recognized  and  endorsed  as 
good  for  the  amount  of  money  therein  specified,  by  the  proper 
officer  of  the  bank  or  firm  upon  which  it  is  drawn.  A  check 
is  usually  certified  by  the  cashier,  or  other  authorized  officer, 
stamping  upon  its  face  the  words,  "Good  when  properly  en- 
dorsed," and  signing  his  name  to  it. 

Certiorari. — A  writ  issuing  out  of  chancery,  or  a  superior 
court,  to  call  up  the  records  of  an  inferior  court,  or  remove  a 
cause  there  depending,  in  order  that  the  party  may  have 
more  sure  and  speedy  justice,  or  that  errors  and  irregularities 
may  be  corrected.  It  is  obtained  upon  complaint  of  a  party 
that  he  has  not  received  justice,  or  that  he  can  not  have  an 
impartial  trial  in  the  inferior  court. 

Character. — The  sum  of  qualities  which  distinguish  one 
person  from  another.  Also  defined  as  "the  opinion  generally 
entertained  of  a  person  by  those  who  are  acquainted  with  him." 
The  most  common  motive  for  introducing  a  man's  character 
and  conduct  in  proof  before  a  jury  is  to  impeach  or  confirm  the 
veracity  of  a  witness.  It  is  also  done  to  afford  a  presumption 
that  a  particular  party  has  not  been  guilty  of  crime  charged; 
also  to  effect  damages  where  the  amount  depends  on  the  char- 
acter of  an  individual. 

Chastity. — Purity  from  all  unlawful  sexual  intercourse. 


MEANING  OF  LEGAL  TERMS.  293 

A  woman  may  defend  her  chastity  by  taking  the  life  of  her 
assailant. 

Chattel. — Every  species  of  property  whether  movable  or 
immovable  that  is  less  than  a  free  hold. 

Child. — The  son  or  daughter  in  relation  to  father  and 
mother. 

Illegitimate  children — bastards. 

Legitimate  children — born  in  lawful  wedlock. 

Natural  children — illegitimate  children. 

Posthumous  children — born  after  the  death  of  the  father. 

Chose.— {French,  thing?)     Personal  property. 

Chose  in  Action. — A  right  to  recover  a  debt,  or  money, 
or  damages,  which  can  not  be  enforced  without  action. 

Citizen. — In  American  Law.  One  who  under  the  Con- 
stitution and  Laws  of  the  United  States  has  a  right  to  vote  for 
representatives  in  Congress,  and  is  qualified  to  fill  offices  in 
the  gift  of  the  people.  Also,  and  more  generally,  any  native 
born  or  naturalized  person,  of  either  sex,  who  is  entitled  to 
full  protection  in  the  exercise  and  enjoyment  of  private  rights. 

Code. — A  body  of  law  established  by  the  legislative  au- 
thority of  the  State. 

Codicil.— Some  addition  to,  or  modification  of,  a  last  will 
and  testament.  The  derivative  meaning  is  "a  little  will."  See 
Wills. 

Coercion.— Constraint,  compulsion,  force. 

Cohabit. — To  live  together  in  the  same  house,  claiming 
to  be  husband  and  wife. 

Collateral  Security.— Property  or  contracts  transferred 
to  insure  the  performance  of  a  principal  engagement.  When 
money  is  borrowed,  bonds  are  frequently  deposited  with  the 
lender  as  collateral  security  to  insure  its  payment. 

Collusion. — An  agreement  between  two  or  more  persons 
to  defraud  a  third  person  of  his  rights  or  to  obtain  an  object 


294  THE    LAW   OF   BUSINESS. 

forbidden  by  law.    Collusion  vitiates  and  makes  void  every  act ' 
infected  with  it. 

Commercial,  Law. — This  branch  of  law  embraces  those 
divisions  which  relate  to  the  rights  of  property  and  relations  of 
persons  engaged  in  commerce. 

Common  Carriers. — Those  who  carry  goods  for  hire,  in- 
differently, for  all  persons. 

Common  Carriers  of  Passengers. — Those  who  carry 
persons  for  hire  and  are  bound  to  carry  all  who  offer.  Unex- 
pected press  of  travel,  and  means  exhausted,  would  excuse 
them. 

Common  Law. — The  law  that  receives  its  binding  force 
from  immemorial  usage  and  universal  reception.  It  is  to  be 
distinguished  from  statute  law  which  derives  its  authority 
from  legislative  enactment,  and  its  rules  and  principles  are 
only  found  in  the  records  of  courts  and  in  the  reports  of 
judicial  decisions. 

Common  Nuisance. — One  which  effects  the  public  in  gen- 
eral and  not  only  some  particular  person. 

Common  Pleas. — In  England,  the  name  of  a  court  having 
jurisdiction,  generally  of  civil  actions.  Many  of  the  States  of 
the  United  States  have  a  court  of  this  name,  but  generally  they 
have  both  civil  and  criminal  jurisdiction,  sometimes  extending 
over  the  whole  State,  but  more  frequently  confined  to  a  single 
county.  It  is  a  court  of  original  and  general  jurisdiction,  for 
the  trial  of  issues  of  fact  and  law. 

Competency. — The  legal  fitness  of  a  witness  to  be  heard 
on  a  trial.  That  quality  of  written  or  oral  evidence  which  en- 
titles it  to  be  heard  on  the  trial  of  a  cause. 

Composition. — The  agreement  between  debtor  and  cred- 
itor whereby  the  creditor  agrees  to  take  a  part  of  the  amount 
due  him  in  satisfaction  of  the  whole. 

Compounding  a  Felony. — The  act  of  a  party  injured  in 


MEANING  OF  LEGAL  TERMS.  295 

agreeing  with  a  thief  or  felon  that  he  will  not  prosecute  him  if 
he  will  return  the  goods  stolen,  or  in'  taking  a  reward  not  to 
prosecute. 

Compulsion. — Forcible  inducement  to  the  commission  of 
an  act. 

Compulsory  acts  are  not  generally  binding;  but  when  a 
man  is  compelled  by  lawful  authority  (as  a  court)  to  do  that 
which  he  ought  to  do,  the  compulsion  does  not  effect  the 
validity  of  the  act.  But  if  the  court  compelled  a  man  to  do  an 
unlawful  act  it  would  be  void. 

Concealment. — The  improper  withholding  by  one  party 
to  a  contract  from  the  other  of  any  fact  or  circumstance  which 
in  justice  ought  to  be  known. 

Conditions. — Terms  of  a  contract. 

Connivance. — An  agreement,  given  indirectly,  that  some- 
thing unlawful  shall  be  done  by  another. 

Constitution. — The  fundamental  law  of  a  free  country; 
the  organic  law  which  secures  the  rights  of  the  citizen  and  de- 
termines his  principal  duties.  The  Constitution  of  the  United 
States  is  the  supreme  law  of  the  country. 

Construction. — The  determining  of  the  meaning  and  ap- 
plication to  the  case  in  question  of  the  provisions  and  con- 
ditions of  a  statute,  will,  or  other  instrument,  or  of  an  oral 
agreement. 

Conveyance. — The  transfer  of  the  title  of  land  from  one 
person  to  another. 

Copy. — A  true  transcript  of  an  original  writing. 

Copyright. — The  exclusive  privilege,  secured  according 
to  certain  legal  forms,  of  printing,  publishing  and  selling 
copies  of  writings  or  drawings. 

Coram  non  Judice. —  Before  one  who  is  not  a  judge,  or 
one  who  has  no  jurisdiction  over  the  particular  case  or  subject 
matter. 


296  THE    LAW   OF   BUSINESS. 

Corporation. — A  body  consisting  of  one  or  more  natural 
persons,  formed  and  authorized  by  law  to  act  as  a  single  per- 
son, usually  for  some  specific  purpose,  and  endowed  by  law 
with  the  capacity  of  perpetual  succession. 

Corpus  Delicti. — The  essence  of  the  crime. 

Court  of  Equity. — A  court  which  administers  justice  ac- 
cording to  the  principles  of  equity. 

Court. — A  body  in  the  government  to  which  the  public 
administration  of  justice  is  delegated.  The  judge  or  judges 
themselves,  when  duly  convened,  are  addressed  as  "The 
Court." 

Court  of  Nisi  Prius. — A  court  of  original  civil  jurisdic- 
tion in  the  city  and  county  of  Philadelphia.  It  is  held  by  one 
of  the  judges  of  the  Supreme  Court  of  the  State.  Jurisdic- 
tion, $500  or  over. 

Court  of  Oyer  and  Terminer. — The  name  of  courts  of 
criminal  jurisdiction  in  some  States,  as  New  York,  Georgia 
and  some  others. 

Court  of  Probate. — A  court  which  has  jurisdiction  in 
the  probate  of  wills  and  in  the  management  and  settlement  of 
estates  of  decedents  and  control  of  minors'  estates,  and  other 
persons  who  are  under  special  protection  of  law. 

Covenant. — A  contract,  under  seal. 

Coverture. — The  condition  or  state  of  a  lawfully  married 
woman. 

Credibility. — Worthiness  of  belief.  The  jury  determines 
the  credibility  of  witnesses,  the  court  their  competency. 

Crim.  Con. — An  abbreviation  for  Criminal  Conversation. 
It  means  adultery,  or  unlawful  sexual  intercourse  with  a  mar- 
ried woman. 

Crime. — An  act  committed  or  omitted  in  violation  of  a 
public  law,  forbidding  or  commanding  it.  When  the  act  is  of 
an  inferior  degree  of  guilt  it  is  usually  called  a  misdemeanor. 


MEANING  OF  LEGAL  TERMS.  297 

Criminal  Law. — That  branch  of  jurisprudence  which 
treats  of  crimes  and  offenses. 

Cross-Examination.—  The  examination  of  a  witness  by 
the  party  opposed  to  the  party  who  called  him. 

Curtesy. — The  life  estate  to  which  a  man  is  entitled  by 
common  law,  on  the  death  of  his  wife,  in  the  lands  which  she 
owned  in  fee  simple  during  their  coverture,  provided  they  had 
lawful  issue,  born  alive  and  capable  of  inheriting  the  estate. 

Customs. — Taxes  payable  on  goods  imported  or  exported. 

Damages. — The  indemnity  recoverable  by  a  person  who 
has  sustained  an  injury,  through  the  act,  default  or  negligence 
of  another,  either  in  his  person,  property  or  rights. 

Date. — The  designation  in  an  instrument  of  writing  of  the 
time  when  and  the  place  where  it  was  made. 

Days  of  Grace. — Certain  days,  usually  three,  allowed  to 
the  acceptor  of  a  bill  or  maker  of  a  note  in  which  to  pay,  in 
addition  to  the  time  contracted  for  in  the  bill  or  note. 

De  Facto.  — Actually;  in  fact. 

De  Jure. — Rightfully;  lawfully;  by  legal  title.  A  person 
who  is  actually  performing  the  functions  and  duties  of  an  offi- 
cer would  be  an  officer  de  facto,  while  the  one  who  is  legally 
entitled  to  the  place  but  is  deprived  of  it  is  an  officer,  de  jure. 

Dead-Born. — A  dead-born  child  is  considered  in  law  as  if 
it  had  never  been  conceived  or  born.  Non  nasci,  et  natutn 
mori,  pari  sunt.  (Not  to  be  born  and  to  be  born  dead  are 
equivalent.) 

Decedent.— A  deceased  person. 

Declaration. — A  statement  in  methodical  and  logical 
form  of  the  circumstances  that  constitute  a  plaintiff's  cause  of 
action. 

Deed. — An  instrument  in  writing  under  seal  which  con- 
tains an  agreement  between  parties  competent  to  contract  and 
which  has  been  delivered  by  the  party  to  be  bound  and  ac- 


298  THE   LAW   OF   BUSINESS. 

cepted  by  the  other.  Most  frequently  used  as  the  conveyance 
of  real  estate,  but  really  applies  to  any  other  matter  as  well. 

Default. — Failure  to  perform  a  contract.  In  practice  it 
means  the  non-appearance  of  a  party  to  a  suit  at  court  within 
the  time  prescribed  by  law. 

Defendant. — The  party  called  upon  to  answer  either  in 
law  or  equity  and  in  civil  and  criminal  suits. 

Deficit. — The  deficiency  that  is  discovered  in  the  moneys 
handled  or  received  by  an  accountant. 

Delivery. — In  conveyancing. — The  transfer  of  a  deed  from 
the  grantor  to  the  grantee,  In  Contracts. — The  transfer  of  the 
possession  of  a  thing  from  one  to  another.  In  Medical  Juris- 
prudence.— The  act  of  a  woman  giving  birth  to  her  offspring. 

Demand. — A  request  to  do  a  particular  thing  specified, 
under  a  claim  of  right  by  the  one  requesting. 

Demise. — The  conveyance  of  an  estate  in  fee,  for  life  or 
for  years.  This  word  also  means  death,  but  this  is  a  borrowed 
or  correlative  signification.  The  "demise  of  the  King,"  Plow- 
den  says,  meant  only  that  in  consequence  of  this  disunion  of 
the  King's  natural  body  from  his  body  politic,  the  kingdom  is 
transferred  or  demised  to  his  successor,  and  so  the  royal  dignity 
remains  perpetual. 

Demurrer. — In  Pleading.  An  allegation  which  admits 
the  truth  of  matters  alleged  by  the  opposing  party,  but  denies 
their  sufficiency  in  law  to  maintain  the  issue,  and  refusing  to 
proceed  until  the  court  decides  the  question.  It  means  liter- 
ally a  stop  or  pause. 

Deponent. — One  who  makes  a  deposition. 

Deposition. — The  testimony  of  a  witness  reduced  to  writ- 
ing, in  due  form  of  law,  and  by  authority  of  some  competent 
court,  to  be  used  on  the  trial  of  some  question  of  fact  in  a 
court  of  justice.  The  opposing  party  has  a  right  to  notifica- 
tion of  time  and  place  of  taking  a  deposition  so  they  may  be 
present  and  cross-examine. 


MEANING  OF  LEGAL  TERMS.  299 

Descent. — Title  by  descent  is  the  title  by  which  one  per- 
son, upon  the  death  of  another,  acquires  the  real  estate  of  the 
deceased  as  his  heir  at  law. 

Devise.  —A  gift  of  real  property  by  a  person's  last  will 
and  testament. 

Devisee.  —A  person  to  whom  a  devise  is  made. 

Devisor. — One  who  devises. 

Disability. — The  lack  of  legal  capacity,  as  infancy,  insan- 
ity, etc. 

Discount. — Interest  withheld  in  advance  from  the  amount 
of  the  loan. 

Dishonor.— A  note  or  bill  of  exchange  is  dishonored  by 
the  refusal  or  neglect  to  pay  it  when  due. 

Distress. — The  taking  of  a  personal  chattel  out  of  the 
possession  of  a  wrong-doer,  into  the  custody  of  the  party  in- 
jured, to  procure  satisfaction  for  the  wrong  done. — Bouvier. 

Divorce.— The  dissolution,  or  partial  suspension,  by  law, 
of  the  marriage  relation.     See  Chapter  on  Divorces. 

Docket. — A  formal  record  of  court  proceedings. 

Domicil. — The  place  where  a  man  has  his  true,  fixed  and 
permanent  home,  and  to  which  whenever  he  is  absent  he  has 
the  intention  of  returning. 

Dower. — A  widow's  life  interest  in  the  lands  and  tene- 
ments of  her  husband. 

Duplicate.— The  double  of  anything. 

Duress. — Personal  restraint,  or  fear  of  personal  injury, 
used  to  compel  a  person  to  make  a  deed,  or  sign  some  paper, 
or  commit  some  offense. 

Elector. — One  who  has  the  right  to  vote. 

Embezzlement. — The  act  of  fraudulently  removing  and 
secreting  personal  property  with  the  care  and  management  of 
which  the  party  has  been  entrusted,  for  the  purpose  of  apply- 
ing it  to  his  own  use. 


300  THE   LAW   OF   BUSINESS. 

Emblements.— The  right  of  a  tenant  to  take  and  remove, 
after  the  termination  of  his  tenancy,  such  products  of  the  land 
as  have  resulted  from  his  own  labor.  The  annual  crops,  corn, 
potatoes,  etc. 

Embracery.— An  attempt  to  corrupt  or  influence  a  jury, 
by  money,  promises,  threats,  etc. 

Eminent  Domain. — The  power  of  the  government  to 
take  private  property  for  public  use. 

Enceinte.— Pregnant. 

Equity.  — Natural  justice.  A  branch  of  remedial  justice, 
by  and  through  which  relief  is  afforded  to  suitors  in  causes 
where  there  is  no  relief  at  law. 

Equity  of  Redemption.— A  right  which  a  mortgagor  of 
an  estate  has  of  redeeming  it  after  it  has  been  forfeited  at  law 
for  non-payment. 

Escrow.— A  deed  delivered  to  a  stranger  to  be  by  him  de- 
livered to  the  grantee  upon  the  happening  of  certain  condi- 
tions. Upon  the  last  delivery  the  transmission  of  title  is  com- 
plete. 

Estate.  -The* degree,  quantity,  nature  and  extent  of  in- 
terest which  a  person  has  in  real  property. 

Estoppel. —The  preclusion  of  a  person  from  asserting  a 
fact  by  his  own  previous  conduct,  inconsistent  therewith. 

Eviction.—  Depriving  a  person  of  the  possession  of  his 
lands  or  tenements. 

Evidence. — That  which  tends  to  prove  or  disprove  any 
matter  in  question. 

Ex  Officio.  -  By  virtue  of  his  office. 

Ex  Parte.— Of  the  one  part. 

Ex  Post  Facto  Law.- A  law  relating  to  the  punishment 
of  crime  which  makes  an  act  criminal  which  was  not  a  crime 
when  it  was  committed ;  or  which  makes  an  offense  punishable 
in  a  manner  in  which  it  was  not  punishable  when  it  was  com 


MEANING  OF  LEGAL  TERMS.  301 

mitted.  The  words  mean  literally,  "by  a  law  made  after- 
ward." The  idea  is  to  make  a  law  to  fit  a  particular  case 
which  has  already  happened.  The  Constitution  of  the  United 
States  says  no  ex  post  facto  law  shall  be  passed. 

Exception. — In  contracts. — A  clause  in  a  deed  by  which 
the  grantor  excepts  something  out  of  that  which  he  granted 
before  the  deed,  hi  practice. —  Objections  made  to  the  de- 
cisions of  the  court  in  the  course  of  the  trial. 

Executor. — One  to  whom  a  man  commits  by  his  last  will 
the  execution  or  carrying  out  of  the  provisions  of  that  will. 

Exemplary  Damages. — Damages  allowed  as  a  punish- 
ment for  torts  committed  with  fraud,  malice  or  violence. 

Exemption. — The  right  given  by  law  to  a  debtor  to  hold 
a  portion  of  his  property  free  from  liability  to  execution  at  the 
suit  of  a  creditor,  or  to  a  distress  from  rent. 

Extortion. — The  unlawful  taking  by  any  officer,  by  virtue 
of  his  office,  of  anything  of  value  that  is  not  due  him,  or  more 
than  is  due,  or  before  it  is  due. 

Extradition. — The  surrender  by  one  sovereign  State  to 
another,  on  its  demand,  of  persons  charged  with  the  commis- 
sion of  a  crime  within  its  jurisdiction,  in  pursuance  of  a 
treaty;  or  by  one  of  the  States  of  the  United  States  to  an- 
other, in  pursuance  of  statutory  law. 

Factor. — A  person  employed  to  sell  goods  delivered  to 
him,  for  a  compensation,  called  commission.  He  always  has 
possession  of  the  goods  and  thus  differs  from  a  broker  who 
sells  by  sample. 

False  Pretenses. — In  Criminal  Law. — False  representa- 
tions of  facts  made  with  a  fraudulent  design  to  obtain  money, 
goods  or  merchandise  with  intent  to  cheat.  The  representa- 
tion must  be  of  a  present,  existing  state  of  things  or  a  past 
event.  An  assurance  with  reference  to  a  future  transaction 
will  not  amount  to  a  statutory  false  pretense. 


302  THE    LAW   OF   BUSINESS. 

Fault. — An  improper  act  or  omission  which  arises  from 
ignorance,  carelessness  or  negligence. 

Fee-Simple. — An  estate  of  inheritance.  It  is  the  largest 
possible  estate  that  a  man  can  have,  being  an  absolute  estate 
in  perpetuity.  The  word  "simple"  adds  no  meaning  to  the 
word  "fee"  standing  alone,  but  it  excludes  all  restriction  as  to 
the  persons  who  may  inherit  it  as  heirs,  distinguishing  it  from 
a  fee-tail  and  from  inheritable  estates  subject  to  collateral  con- 
ditions. 

Felony. — An  offense,  originally  in  English  Common  Law, 
that  was  punished  by  a  total,  forfeiture  of  lands  or  goods,  or 
both,  and  capital  or  other  punishment  may  be  added  according 
to  the  degree  of  guilt.  The  word  has  no  clearly  defined  mean- 
ing in  American  law,  but  the  statutes  of  nearly  all  the  States 
define  it  fully  and  clearly.  As  a  rule,  however,  in  most  of  the 
States,  as  Massachusetts,  New  York,  Ohio,  it  means  a  crime 
punishable  by  death  or  imprisonment  in  the  State's  prison, 
and  no  other. 

Female. — The  sex  which  bears  young.  It  is  a  general 
rule  of  law  that  the  young  of  a  female  animal  belongs  to  the 
one  who  owns  the  mother. 

Feud. — Land  held  of  a  superior  on  condition  of  rendering 
him  services. 

Feudal  Law. — A  system  of  tenures  of  real  property 
which  prevailed  in  Western  Europe  during  the  middle  ages. 
The  feudal  tenure  was  a  right  to  lands  on  the  condition  of  per- 
forming services  and  rendering  allegiance  to  a  superior  lord. 

Fixtures. — Personal  chattels  affixed  to  real  estate,  which 
may  be  severed  and  removed  by  the  party  who  has  affixed 
them,  or  by  his  representative,  against  the  will  of  the  owner  of 
the  freehold. — Bouvier. 

See  "Deed  to  a  Farm." 

Flotsam. — Goods,  which  being  thrown  overboard  from  a 
ship  to  save  the  rest  of  the  cargo  or  passengers,  float. 


MEANING  OF  LEGAL  TERMS.  303 

Foeticide. — Criminal  abortion. 

Foreclosure. — A  legal  proceeding  by  which  the  mort- 
gagor's right  of  redemption  of  the  mortgaged  property  is 
closed  forever. 

Forfeiture  of  Bond. — A  failure  to  perform  the  condi- 
tion on  which  the  obligee  was  to  be  excused  from  the  penalty 
in  the  bond. 

Forgery.— The  falsely  making  or  materially  altering,  with 
intent  to  defraud,  any  writing  which,  if  genuine,  might  appar- 
ently be  of  legal  efficacy  or  the  foundation  of  a  legal  liability. 
— Bishop 

The  statutes  of  most  of  the  States  define  forgery  with  great 
particularity  and  reference  should  be  made  to  them. 

Fornication  —Unlawful  sexual  intercourse  by  an  unmar- 
ried person  with  another,  either  married  or  not.  Marriage  dis- 
tinguishes this  offense  from  adultery. 

Franchise. — A  special  privilege  conferred  by  govern- 
ment or  individuals,  and  not  belonging  to  the  citizens  by  com- 
mon right;  e.g.,  the  elective  franchise. 

Fraud. — The  unlawful  appropriation  of  another's  prop- 
erty, with  knowledge,  by  design,  and  without  criminal  intent. 
Fraud  vitiates  everything  with  which  it  is  connected.  When 
proved  it  avoids  a  contract  ab  initio.  It  is  not  of  itself  a 
crime,  for  want  of  criminal  intent,  though  it  may  become  such 
in  cases  provided  by  law.  The  statutes  of  the  different  States 
define  frauds  and  their  punishments. 

Frauds,  Statute  of. — "An  Act  for  the  Prevention  of 
Frauds  and  Perjuries,"  passed  in  the  reign  of  Charles  II.,  of 
England,  the  object  of  which  was  to  require  certain  transac- 
tions to  be  in  writing.  Nearly  all  the  States  have  adopted 
some  of  the  many  provisions  of  this  celebrated  statute. 

Freehold. — An  estate  of  inheritance  or  for  life. 

Full  Age. — The  age  of  twenty-one  for  both  males  and  fe- 


304  THE   LAW   OF   BUSINESS. 

males  in  all  States  of  the  Union  excepting  Vermont  aud  Ohio, 
where  a  female  reaches  full  age  at  eighteen. 

Garnishee. — A  person  who  has  or  is  thought  to  have 
money  or  property  in  his  possession  belonging  to  a  defendant, 
which  money  or  property  has  been  attached  in  his  hands  and 
he  has  been  garnished,  that  is,  given  notice  of  such  attach- 
ment. 

Gestation. — In  Medical  Jurisprudence.  The  time  during 
which  a  female,  who  has  conceived,  carries  the  embryo  or 
foetus  in  her  uterus.  This  is  an  extremely  important  question 
in  determining  the  legitimacy  of  children  for  the  inheritance  of 
estates  and  other  important  matters  may  depend  upon  the 
settlement,  of  that  point.  The  usual  period  of  pregnancy  is  ten 
lunar  months,  two  hundred  and  eighty  days,  equal  to  nine 
calendar  months  and  one  week.  Our  laws  fix  no  precise  limit 
but  admit  the  possibility  of  a  birth  occurring  previous  to  or 
after  the  usual  time. 

.  Good  Will. — The  advantage  or  benefit  enjoyed  by  a  busi- 
ness beyond  the  value  of  capital,  stock,  etc.,  in  consequence  of 
patronage  from  regular  customers,  or  on  account  of  position, 
or  celebrity,  or  reputation  for  skill  or  punctuality,  or  other  ac- 
cidental circumstances. 

Grand  Jury. — A  body  of  men  consisting  of  not  fewer  than . 
twelve  nor  more  than  twenty-four  (in  this  country  generally 
fifteen),  who  hear  accusations  in  criminal  charges  and  if  the 
evidence  is  sufficient  find  an  indictment  against  the  party  com- 
plained of.  The  grand  jury  hears  only  evidence  against  the 
person  charged.  The  proceeding  before  the  grand  jury  is  not 
a  trial  but  simply  an  examination  of  the  evidence  against  the 
party  to  ascertain  whether  he  should  be  presented  to  the 
court  for  trial.  Twelve  must  concur  in  order  to  find  a  true 
bill,  otherwise  it  must  be  ignored.  Their  operations  must  be 
kept  strictly  secret. 


MEANING  OF  LEGAL  TERMS.  305 

Grand  Larceny. — See  Larceny. 

Grant. — A  transfer  by  deed  of  that  which  can  not  be 
passed  by  livery. 

Grantee. — He  to  whom  a  grant  is  made. 

Grantor. — He  who  makes  a  grant. 

Ground  Rent.— Rent  paid  for  the  privilege  of  building 
on  another  man's  land. 

Guarantee. — He  to  whom  a  guaranty  is  made. 

Guarantor. — He  who  makes  a  guaranty. 

Guaranty. — A  collateral  undertaking  to  pay  the  debt  of 
another  in  case  he  does  not.  The  Statute  of  frauds  provides 
that  such  an  undertaking  must  be  in  writing  and  signed  by 
the  party  to  be  charged.     See  Surety. 

Guardian. — One  who  has  legally  the  care  and  management 
of  the  person,  or  the  estate,  or  both,  of  a  child  during  minority. 

Guardian  ad  Litem. — A  guardian  appointed  to  manage 
the  interests  of  a  minor  in  a  suit. 

Habeas  Corpus. — (Latin,  that  you  have  the  body.)  A 
writ  directed  to  the  person  who  is  detaining  another  and 
commanding  him  to  produce  the  body  of  the  prisoner  at  a 
certain  time  and  place.  The  object  is  to  inquire  into  the 
cause  of  a  person's  imprisonment  with  a  view  to  protect  his 
right  to  personal  liberty.  This  is  the  most  famous  writ  in 
the  law.  It  is  often  called  the  great  writ  of  liberty  because 
for  centuries  it  has  been  used  to  remove  illegal  restraint  upon 
personal  liberty. 

Head  of  a  Family. — One  who  provides  for  a  family. 

Heir. — He  who  succeeds  to  the  rights  and  occupies  the 
place  of  a  deceased  person. 

Heir  Apparent. — One  who  has  an  indefeasable  right  to 
the  inheritance,  provided  he  outlive  the  ancestor. 

Hereditaments. — Things  capable  of  being  inherited, 
whether  corporeal  or  incorporeal,  real,  personal  or  mixed. 


306  THE    LAW   OF   BUSINESS. 

Hermaphrodite. — A  person  or  animal  having  the  sexual 
organs  of  both  male  and  female.  In  law  they  are  adjudged 
to  belong  to  the  sex  which  most  prevails  in  them. 

High-Water  Mark. — The  line  on  the  shore  reached  by 
the  waves  of  the  sea  when  the  tide  is  at  its  highest  point. 

Highway. — A  passage,  road  or  street  which  every  citizen 
has  a  right  to  use. 

Homestead. — The  place  of  the  house,  or  home  place. 
Homestead  farm  does  not  necessarily  include  all  the  parcels 
of  land  he  owns  even  if  they  all  lie  together.  This  depends 
upon  the  intention  of  the  parties  and  if  the  term  is  used  in  a 
deed  the  extent  of  its  application  must  be  gathered  from  the 
context. 

Homicide. — The  killing  of  a  human  being  by  a  human 
being. 

Excusable  Homicide. — A  killing  under  such  circumstances 
of  accident  or  necessity  that  the  party  is  relieved  from  the 
penalty  annexed  to  the  commission  of  a  felonious  homicide. 
Felonious  Homicide. — A  killing  committed  willfully  and  under 
such  circumstances  as  to  make  it  punishable.  Justifiable 
Homicide. — A  killing  committed  with  full  intent  but  under 
such  circumstances  of  duty  as  to  render  the  act  one  proper  to 
be  performed.  When  the  death  is  intentionally  caused  by  the 
deceased  himself  he  is  called  a  felo  de  se. 

House-Breaking. — The  forcible  entry  of  a  house  for  un- 
lawful purposes  by  day  light.     See  Burglary. 

Household. — Those  who  dwell  under  the  same  roof  and 
constitute  a  family. 

Household  Furniture: — All  personal  chat':1-  that  con- 
tribute to  the  use  or  convenience  of  the  household  or  to  the 
ornamentation  of  the  house. 

Household  Goods. — Everything  of  a  permanent  nature 
used  in  or  purchased  lor  the  house,  except  goods  kept  in  the 


MEANING  OF  LEGAL  TERMS.  307 

way  of  trade.  By  permanent  nature  is  meant  things  not 
consumed  in  their  enjoyment. 

Householder. — Master  or  chief  of  a  house. 

Hypothecation. — A  right  which  has  been  conferred  upon 
a  creditor  in  or  to  a  thing,  which  is  not  delivered  into  his 
possession,  by  which  he  has  the  power  to  cause  that  thing  to 
be  sold  and  the  proceeds  applied  to  the  discharge  of  a  debt 
due  him  from  the  person  hypothecating.  A  pledge  of  goods 
to  secure  a  debt  without  delivery  of  goods  so  pledged. 

I.  O.  U. — A  memorandum  of  debt  used  among  merchants. 
It  is  not  a  promissory  note,  for  it  contains  no  direct  promise 
to  pay. 

Idiot. — A  person  without  understanding  or  sense  from  his 
nativity,  and  whom  the  law  presumes,  therefore,  never  likely 
to  attain  any. 

Ignorance. — Lack  of  knowledge.  "  Ignorantia  legis  nemi- 
nem  excusat"     Ignorance  of  the  law  excuses  no  one. 

Illicit. — Unlawful;  forbidden  by  law. 

Imbecility. — Mental  deficiency,  usually  congenital,  but 
sometimes  resulting  from  an  obstacle  to  the  development  of 
the  mind  coming  on  in  infancy. 

Impanel.— To  write  the  names  of  the  jurors  in  a  panel. 
See  Panel. 

Impeachment.— A  written  accusation  against  a  public  of- 
ficer. In  England  the  House  of  Commons  prefers  the  charge 
of  impeachment  and  the  House  of  Lords  tries  the  impeach- 
ment. In  the  United  States  the  House  of  Representatives 
has  the  sole  power  of  impeachment  and  the  Senate  the  sole 
power  to  try  all  impeachments.  It  requires  a  two-thirds  vote 
of  the  Senate  to  convict.  When  the  President  is  impeached 
the  Chief  Justice  presides  at  the  trial.  The  penalty  in  cases 
of  conviction  shall  not  extend  further  than  removal  from  office 
and  disqualification  to  hold  any  office  of  honor,  trust  or  profit 


308  THE   LAW   OF   BUSINESS. 

under  'the  United  States.  In  Evidence. — The  allegation  and 
proof  that  a  witness  is  unworthy  of  belief. 

Impotence. — The  incapacity  for  copulation  or  propagation 
of  the  species. 

In  Loco  Parentis. — In  the  place  of  a  parent. 

In  Personam. — A  remedy  in  which  the  proceedings  are 
against  the  person,  distinguished  from  those  which  are  against 
things,  in  rem. 

In  Re. — In  the  matter  of;  as  in  re  John  Doe,  in  the  matter 
of  John  Doe. 

In  Rem. — A  form  of  action  where  the  proceedings  are 
against  the  thing;  distinguished  from  personal  actions,  in  per- 
sonam. 

In  Statu  Quo. — In  the  same  situation  as  ;  in  the  former 
state. 

Incapacity. — The  want  of  a  quality  legally  to  do  some- 
thing. 

Incendiary. — One  guilty  of  the  crime  of  arson. 

Incest. — The  carnal  copulation  or  sexual  intercourse  of  a 
man  and  woman  related  in  the  degrees  within  which  marriage 
is  prohibited  by  law. 

Incumbrance. — Any  legal  claim  or  lien  upon  land  con- 
sistent with  the  passing  of  the  fee. 

Indemnity. — Something  given  to  a  person  to  prevent  his 
suffering  loss  or  damage.  When  the  State  takes  private 
property  for  public  use  it  indemnifies  the  owner. 

Indenture. — A  formal  written  instrument,  containing  a 
contract,  between  two  or  more  persons,  in  different  interests. 
It  was  formerly  made  in  duplicate  or  one  copy  for  each  party 
and  then  the  copies  were  laid  together  and  indented  with 
some  instrument  so  they  would  always  fit  together.  The  in- 
denting which  gave  the  writing  its  name  is  now  done  away 
with. 


MEANING  OF  LEGAL  TERMS.  309 

Indictment. — A  written  accusation  against  a  persen  of  a 
crime,  preferred  by  a  grand  jury. 

Indorsement. — Writing  one's  name  on  the  back  of  a 
promissory  note  or  other  negotiable  instrument. 

Indorser. — One  who  indorses. 

Infant. — One  under  the  age  of  twenty-one  years. 

Infanticide. — The  murder  of  a  new  born  infant. 

Information. — The  instrument  which  contains  the  de- 
positions of  witnesses  against  the  accused. 

Infraction. — The  violation  of  a  law  or  a  contract. 

Infringement. — Trespassing  upon  the  rights  secured  to 
a  person  by  a  patent. 

Inheritance. — A  perpetuity  in  lands  to  a  man  and  his 
heirs.  The  property  which  is  inherited  is  also  called  an  in- 
heritance. 

Injunction. — A  prohibitory  writ  issued  by  a  court  of 
equity  to  restrain  one  of  the  parties  to  a  suit  in  equity  from  do- 
ing an  act  which  is  deemed  unjust  or  inequitable. 

Insanity. — Unsoundness  of  mind.  '  In  Medical  Jurispru- 
dence. The  prolonged  departure,  without  any  adequate  cause, 
froni'the  states  of  feeling  and  modes  of  thinking  usual  to  the 
individual  in  health. 

Insolvency. — The  condition  of. a  person  who  from  any 
cause  is  unable  to  pay  his  debts. 

Instrument. — The  writing  which  contains  some  agree- 
ment, so  called  because  it  has  been  prepared  as  a  memorial  of 
what  has  been  agreed  upon.  The  instrument  is  the  evidence 
of  the  agreement. 

Insurance. — A  contract  by  which  one  party  undertakes 
for  an  agreed  premium  to  indemnify  another  against  loss  on  a 
specified  thing  by  specified  perils. 

Interest. — In  Contracts. — A  man's  right  of  property  in  a 
certain  thing.  In  Debts. — The  compensation  paid  by  the 
borrower  to  the  lender  for  the  the  use  of  money. 


3IO  THE    LAW   OF   BUSINESS. 

Interlineation. — Writing  between  the  lines. 

Interpretation. — The  explanation  of  the  meaning  of 
any  signs  used  to  convey  ideas. 

Intestate. — One  who,  though  competent  to  do  so,  has 
made  no  will,  or  having  made  one,  has  made  it  null  on  ac- 
count of  defective  form. 

Invention. — The  act  of  finding  out  or  devising  some- 
thing new,  something  which  did  not  exist  before. 

Inventory. — An  enumeration  in  writing  of  the  goods  and 
chattels,  rights  and  credits  of  a  testator  or  an  intestate. 

Issue. — In  the  Law  of  Realty.  All  persons  who  have  de- 
scended from  a  common  ancestor.  In  Pleading. — A  single, 
certain  and  material  point  deduced  by  the  pleadings  of  the 
parties  which  is  affirmed  on  one  side  and  denied  on  the  other. 

Jeopardy. — Peril;  danger.  The  United  States  Constitu- 
tion provides  that  a  man  shall  not  be  put  twice  in  jeopardy 
for  the  same  offense.  A  prisoner  is  in  jeopardy  when  a  trial 
jury  is  sworn  and  impaneled. 

Jettison  or  Jetsam. — Goods  which,  thrown  overboard 
from  a  ship  to  save  the  rest  of  the  cargo  or  passengers,  sink. 

Judgment. — The  conclusion  of  law  upon  facts  found  or 
admitted  by  the  parties,  or  upon  default  in  the  course  of  the 
suit. 

Jurisdiction. — The  authority  by  which  judicial  officers 
take  cognizance  of  and  decide  causes. 

Jurisprudence. — The  science  of  law. 

Jurist. — One  versed  in  the  science  of  law. 

Jury. — A  body  of  men  who  are  sworn  to  declare  the  facts 
of  a  case  as  they  are  delivered  from  the  evidence  placed  before 
them. 

Justification. — In  Pleading. — The  allegation  of  matter 
of  fact  by  the  defendant,  showing  his  legal  right  to  do  the 
thing  complained  of  by  the  plaintiff. 


MEANING-  OF  LEGAL  TERMS.  311 

Key. — An  instrument  made  for  shutting  and  opening  a 
lock.  Keys  of  a  house  are  real  estate  and  go  to  the  heir  or 
the  purchaser.  Delivering  the  keys  of  a  warehouse  to  a'  pur- 
chaser of  goods  locked  up  there,  with  a  view  of  so  delivering 
the  goods,  completes  the  delivery.  Keys  may  be  used  as  im- 
plements of  housebreaking. 

Kindred. — Relations  by  blood.  All  kindred  are:  1.  De- 
scendants, as  children;  2.  Ascendants,  as  father,  mother;  3. 
Collaterals,  as  brother,  uncle. 

Laches. — Negligence. 

Landlord. — Popularly,  one  who  owns  lands  or  tenements 
which  he  rents  out  to  others. 

Larceny. — The  wrongful  and  fraudulent  taking  and  car- 
rying away  by  one  person  of  the  personal  goods  of  another 
from  any  place,  with  a  felonious  intent  to  convert  them  per- 
manently to  the  taker's  own  use  and  make  them  his  property 
without  the  consent  of  the  owner. 

Grand  Larceny  and  Petit  Larceny  are  divisions  of  the 
crime  based  entirely  upon  the  value  of  the  thing  stolen,  and  the 
division  is  fixed  by  Statute  in  the  different  States.  In  Ohio 
the  taking  of  anything  of  the  value  of  thirty-five  dollars  or 
more  is  grand  larceny;  under  that  petit  larceny. 

Law  Merchant. — The  general  body  of  commercial  usages 
in  matters  relating  to  commerce. 

Lawful  Money. — Money  which  is  a  legal  tender  in  the 
payment  of  debts. 

Leading  Question. — A  question  which  suggests  the  an- 
swer desired.  Leading  questions  are  not  permitted  in  ex- 
amination in  chief. 

Lease. — A  contract  for  the  possession  and  profits  of  lands 
and  tenements,  either  for  life  or  for  a  term  of  years,  or  during 
the  pleasure  of  the  parties. 

Legacy. — A  gift  by  last  will. 


312  THE    LAW   OF   BUSINESS. 

Legal  Tender. — That  currency  or  money  which  has 
been  made  suitable  by  law  for  the  purposes  of  a  tender  or 
offer  in  the  payment  of  debts. 

Legatee. — A  person  to  whom  a  legacy  is  given. 

Legislature. — The  law  making  body  of  a  State. 

Legitimacy. — The  state  of  one  born  in  lawful  wedlock. 

Letters  of  Marque  and  Reprisal.— A  commission 
given  by  the  government  to  a  private  individual  to  take  the 
property  of  a  foreign  State,  or  of  the  citizens  or  subjects  of 
such  State,  as  a  reparation  for  injury  committed  by  that  State 
or  its  subjects. 

Levy. — To  raise;  the  raising  of  the  money  for  which  an 
execution  has  been  issued. 

Libel. — In  Torts. — That  which  is  written  or  printed,  and 
published,  calculated  to  injure  the  character  of  another  by 
bringing  him  into  ridicule,  hatred  or  contempt. 

Lien. — A  hold  or  claim  which  one  person  has  upon  the 
property  of  another  as  the  security  of  some  debt  or  charge. 

Limitations. — Statutes  prescribing  the  time  within  which 
a  party  having  a  cause  of  action  may  appeal  to  the  courts  for 
redress.     See  "Statutes  of  Limitations." 

Liquidate. — To  pay;  to  settle. 

Liquidated  Damages. — Damages  whose  amount  has  been 
anticipated  and  agreed  upon  by  the  parties  prior  to  the  breach. 

Litigation. — A  contest  in  a  court  of  justice  to  enforce  a 
right. 

Loan. — A  bailment  of  an  article  for  use  or  consumption 
without  reward.  The  loan  of  money  is  an  exception,  being 
usually  for  a  reward.  When  an  article  is  loaned  for  consumption 
it  must  be  returned  in  kind,  as,  a  loaf  of  bread.  The  prop- 
erty passes  to  the  borrower.  When  the  loan  is  for  use  the 
identical  article  must  be  returned,  as  a  gun  loaned  for  hunt- 
ing.    The  property  remains  in  the  lender. 


MEANING  OF  LEGAL  TERMS.  313 

Loss. — In  Insurance. — The  destruction  of  the  property  in- 
sured by  the  perils  insured  against,  according  to  the  provisions 
of  the  contract.  If  a  house  is  insured  against  fire  and  should 
be  blown  to  pieces  by  a  tornado  or  swept  away  by  a  flood  this 
would  not  constitute  a  loss  within  the  policy. 

Magna  Charta. — The  Great  Charter  of  English  liberties. 
It  was  wrung  from  King  John  by  his  barons,  assembled  in 
arms,  on  the  19th  of  June,  12 15.  It  was  given  by  the  King's 
own  hand  on  a  little  island  in  the  river  Thames,  in  the  County 
of  Buckinghamshire.  The  island  is  called  to  this  day  Magna 
Charta  Island.  Magna  Charta  has  thirty-seven  chapters.  The 
most  celebrated  is  chapter  29,  which  confirms  the  right  to 
trial  by  jury. 

Maintenance. — Support;  aid;  assistance. 

Majority. — The  condition  of  a  person  who  has  arrived  at 
full  age.  In  voting.  The  greater  number ;  more  than  all  the 
opponents. 

Malfaesance. — The  unjust  performance  of  some  act 
which  the  party  had  no  right  to  do,  or  had  contracted  not 
to  do. 

Malice. — In  Criminal  Law. — Doing  a  wrongful  act  inten- 
tionally, without  cause  or  excuse. 

Mandamus. — A  writ,  issuing  generally  out  of  the  highest 
court  of  general  jurisdiction  in  a  State,  requiring^  some  person, 
corporation  or  inferior  court  within  its  jurisdiction,  to  do  some 
particular  thing  specified,  arid  which  pertains  to  their  office  or 
duty. 

Manslaughter. — In  Criminal  Law. — The  unlawful  kill- 
ing of  another  without  malice.  Manslaughter  differs  from 
murder  in  lacking  the  essential  elements  of  malice  and  pre- 
meditation. There  being  no  premeditation,  there  can  be  no 
accessories  before  the  fact.  Manslaughter  may  be  voluntary, 
as  when  the  person  intends  to  produce  the  injury,  or  involun- 


314  THE   LAW   OF   BUSINESS. 

tary,  as  that  which  occurs  without  the  intention  to  inflict  the 
injury  but  in  the  performance  of  an  unlawful  act.  The  differ- 
ent grades  of  homicide  are  defined  and  their  punishments 
fixed  by  the  statutes  of  the  various  States. 

Maturity. — The  time  when  a  note  or  bill  becomes  due. 

Mayhem. — In  Criminal  Law. — The  maiming  of  a  person 
by  depriving  him  of  any  of  his  members  which  are  necessary 
for  his  defense  or  protection,  as  the  cutting  off  of  a  man's 
finger  or  hand,  or  striking  out  his  eye. 

Medical  Jurisprudence. — That  science  which  applies 
the  principles  of  medicine  and  surgery  to  the  settlement  of 
doubtful  questions  which  arise  in  courts  of  law. 

Mesne. — Intermediate;  the  middle  between  two  extremes. 

Mesne  Process. — All  writs  necessary  to  a  suit  between 
primary  process  or  summons  and  final  process  or  execution. 

Minor. — One  not  twenty-one  years  old. 

Miscarriage. — In  Medical  Jurisprudence. — The  expulsion 
of  the  embryo  from  the  uterus  within  the  first  six  weeks  after 
conception.  Between  that  time  and  the  end  of  six  months  it 
is  called  abortion,  and  if  soon  after  the  sixth  month  and  before 
full  time  it  is  called  premature  labor.  These  terms,  miscar- 
riage and  abortion  are  commonly  used  without  any  reference 
to  these  divisions  of  time  and  in  criminal  law  the  act  of  de- 
stroying a  foetus  any  time  before  birth  is  called  procuring  mis- 
carriage. 

Misdemeanor. — Every  offense  inferior  to  felony,  punish- 
able by  indictment  or  particular  prescribed  proceedings. 

Misfeasance. — The  performance  of  a  lawful  act  in  an  im- 
proper manner,  by  which  another  person  receives  an  injury. 

Misprision. — The  concealment  of  a  crime,  as  felony, 
treason.  It  is  the  duty  of  every  good  citizen  knowing  of  a 
felony  or  treason  having  been  committed  to  inform  some 
magistrate. 


MEANING  OF  LEGAL  TERMS.  315 

Mistake. — Some  unintentional  act,  omission  or  error  aris- 
ing from  ignorance,  •  surprise,  imposition,  or  misplaced  confi- 
dence.— Story. 

Mitigation. — Reduction  of  the  amount  of  a  penalty  or 
punishment. 

Moiety.— The  half  of  anything. 

Monarchy. — A  government  ruled  either  really  or  theo- 
retically by  one  man,  who  is  wholly  set  apart  from  all  other 
members  of  the  State. 

Money. — The  common  medium  of  exchange  in  a  civilized 
nation.  The  Constitution  of  the  United  States  says  that  "  the 
Congress  shall  have  power  to  coin  money ;"  and  again  that 
"no  State  shall  coin  money  or  make  anything  but  gold  and 
silver  a  legal  tender  in  payment  of  debt."  While  these  con- 
stitutional provisions  seem  to  make  the  money  of  the  country 
synonymous  with  coin,  s*till  the  Supreme  Court  of  the  United 
States  has  decided  that  the  notes  issued  by  the  government 
were  legal  and  they  have  become  an  important  part  of  our 
circulating  medium. 

Moral  Obligation. — A  duty  which  a  person  owes  and 
ought  to  perform  but  which  he  is  not  legally  bound  to  do. 

Mortgage. — The  conveyance  of  an  estate  or  property  by 
way  of  pledge  for  the  security  of  debt,  and  to  become  void  on 
the  payment  of  that  debt.  The  mortgagor  usually  retains 
possession  if  the  thing  pledged  is  real  property. 

Murder.— In  Criminal  Law.— The  willful  killing  of  any 
person  with  malice  aforethought.  In  nearly  all  the  States 
murder  has  been  divided  into  degrees.  A  killing  with  malice 
and  premeditation,  as  by  poisoning  or  lying  in  wait  or  when 
the  preparation  for  the  act  can  be  shown;  or  a  killing  com- 
mitted in  the  attempt  to  perpetrate  any  arson,  burglary,  rape 
or  robbery,  is  called  in  most  of  the  States  murder  in  the  first 
degree.     All  other  kinds  of  murder  are  considered  murder  in 


316  THE    LAW   OF    BUSINESS. 

the  second  degree.  Some  States  have  third  degree  murder, 
others  manslaughter.  The  exact  divisions  of  this  crime  in  the 
States  can  only  be  learned  by  reading  their  respective  statutes. 

Mutiny. — Insurrection  against  constituted  authority,  par- 
ticularly military  or  naval  authority;  concerted  revolt  against 
the  rules  of  discipline. 

Nation. — An  independent  body  politic. 

Naturalization. — The  act  by  which  an  alien  becomes  a 
citizen  of  the  United  States. 

Negotiable. — In  Mercantile  Law. — A  contract  which  is 
capable  of  being  transferred  by  endorsement  and  delivery  (if 
made  to  A  or  order),  or  by  delivery  alone  (if  made  to  A  or 
bearer),  the  assignee  in  either  case  having  the  right  to  sue  on 
the  contract  in  his  own  name. 

Next  of  Kin. — A  term  used  to  designate  the  relations  of 
a  party  who  has  died  intestate. 

Night. — That  space  of  time  during  which  the  sun  is 
below  the  horizon  of  the  earth,  except  a  short  period  called 
commonly  twilight,  before  rising  and  after  setting,  during 
which  a  man's  face  may  be  discerned.  This  is  important 
sometimes  in  determining  the  crime  of  burglary,  which  can 
only  be  committed  in  the  night  time.  If  the  face  can  be  re- 
cognized by  the  fading  sunlight  it  is  not  night  and  a  breaking 
and  entering  another's  house  at  that  time  is  not  burglary  but 
housebreaking. 

Nolle  Prosequi.— (Latin.— To  be  unwilling  to  prose- 
cute.) An  entry  made  on  the  record  by  which  the  public 
prosecutor  declares  that  he  will  not  proceed  against  a  defend- 
ant charged  criminally,  or  a  plaintiff,  that  he  will  not  proceed 
against  the  defendant  in  a  civil  action.  A'  prosecutor  can 
enter  nolle  pros,  before  the  jury  is  impaneled  or  after  convic- 
tion without  the  consent  of  the  defendant,  but  not  after  the 
jury  is  impaneled. 


MEANING  OF  LEGAL  TERMS.  317 

Nominal  Damages. — A  trifling  sum  awarded  to  a  plain- 
tiff who  has  sued  for  damages  and  shown  a  breach  of  duty  on 
the  part  of  defendant  but  no  serious  loss  resulting  therefrom. 

Nonsuit. — The  name  of  a  judgment  given  against  a 
plaintiff,  1,  when  he  abandons  his  cause  or  absents  himself 
from  court  when  called  and  allows  judgment  for  cost  to  be 
entered  against  him ;  or  2,  when  he  has  given  no  evidence  on 
which  a  jury  could  find  a  verdict.  A  nonsuit  is  no  bar  to 
another  action  for  the  same  cause. 

Not  Proven. — In  Scotch  Criminal  Law. — A  verdict  some- 
times given  by  a  Scotch  jury  when  the  evidence  against  a 
prisoner  was  so  strong  that  they  did  not  dare  acquit  him  and 
yet  not  sufficient  to  convict.  This  verdict  had  the  effect  of 
acquittal  in  that  the  defendant  could  not  be  tried  again  for  the 
same  offense,  yet  the  effect  upon  his  reputation  was  far  dif- 
ferent, for  it  cast  an  indelible  stigma  upon  his  name. 

It  was  as  if  the  jury  should  say,  "We  believe  him  guilty 
but  can't  prove  it." 

Nudum  Pactum. — (Latin. — A  naked  contract.)  A  con- 
tract without  any  consideration. 

Nuisance. — Anything  that  unlawfully  worketh  hurt,  in- 
convenience or  damage. 

Null. — That  which  has  no  more  effect  than  if  it  did  not 
exist. 

Nullius  Filius. — A  bastard;  nobody's  son. 

Nuncupative  Will. — An  oral  will  declared  by  testator 
in  extremis  (in  his  last  moments)  before  witnesses  and  after- 
ward reduced  to  writing. 

Oath. — An  outward  pledge  given  by  the  person  taking  it 
that  his  attestation  or  promise  to  tell  the  truth  is  made  under 
an  immediate  sense  of  his  responsibility  to  God. 

Office. — A  right  to  exercise  a  public  function  or  employ- 
ment and  to  take  the  fees  or  emoluments  belonging  to  it. 


318  THE   LAW   OF   BUSINESS. 

Onus  Probandi. — The  burden  of  proof. 

Ordinary  Care. — That  degree  of  care  which  men  of  or- 
dinary prudence  exercise  in  taking  care  of  their  own  property. 

Oyez. — The  sheriff  or  other  court  officer  opens  court,  and 
public  criers  sometimes  call  attention  to  a  proclamation  by  re- 
peating this  word  three  times.  It  means  "hear  ye,"  and  is 
usually  wrongfully  pronounced  O  yes. 

Panel. — A  schedule  or  roll  containing  the  names  of  jurors 
summoned  by  virtue  of  a  writ  of  venire  facias. 

Parliament. — The  legislative  branch  of  the  government 
of  Great  Britain.  It  consists  of  the  House  of  Lords  and  the 
House  of  Commons.  Membership  in  the  House  of  Lords  is 
inherited.  Membership  in  the  Commons  is  by  election  by 
the  people.  The  sovereign  has  no  right  of  veto,  Queen  Anne 
being  the  last  sovereign  who  exercised  that  prerogative. 

Parol. — (French — word,  speech.)  A  term  applied  to  con- 
tracts not  under  seal.  Parol  contracts  may  be  written  or 
verbal,  but  if  written  have  no  seal. 

Parol  Evidence. — Evidence  delivered  verbally  by  the 
witness. 

Parole. — The  agreement  of  persons  captured  in  war  that 
they  will  not  again  take  up  arms  against  those  who  captured 
them,  either  for  a  limited  time  or  during  the  continuance  of 
the  war. 

Parricide. — The  unlawful  killing  of  father  or  mother;  the 
murder  of  any  one  to  whom  reverence  is  due.  Blackstone  ap- 
plies the  word  to  one  who  kills  his  child. 

Parties. —  To  Contracts. — Those  persons  who  engage 
themselves  to  do  the  things  set  forth  in  the  agreement.  To 
Suits  in  Law  or  Equity. — The  plaintiff  and  defendant. 

Partners. — Members  of  a  partnership. 

Partnership. — A  voluntary  contract  between  two  or 
more  persons  capable  of  contracting,  for  joining  together  their 


MEANING  OF  LEGAL  TERMS.  319 

money,  goods,  labor  and  skill,  or  any  of  these,  in  some  lawful 
business,  with  an  understanding  that  there  shall  be  a  division 
of  profits  between  them. 

Patent. — A  grant  by  which  the  United  States  secures  to 
inventors  for  a  limited  time  the  exclusive  use  of  their  own  in- 
ventions. 

Also,  the  title  deed  by  which  the  government  conveys  its 
lands. 

Payment. — The  discharge  in  money  of  a  sum  due. 

Penitentiary. — A  prison  for  the  punishment  of  convicts. 

Peril. — An  accident  by  which  a  thing  is  lost. 

Perils  of  the  Sea. — A  term  used  in  bills  of  lading.  It 
refers  to  a  class  of  dangers  to  goods  carried  which  common 
carriers  do  not  undertake  to  insure  against  by  virtue  of  their 
general  undertaking.  The  term  seems  to  have  been  extended 
in  its  application  in  the  United  States  to  include  perils  of  the 
river. 

Perishable  Goods. — Goods  whose  value  decreases  by  be- 
ing kept. 

Perjury. — The  willful  giving,  under  oath,  in  a  judicial 
proceeding  or  court  of  justice,  of  false  testimony  material  to 
the  point  at  issue. 

Perquisites. — Something  derived  from  a  position  or  of- 
fice in  addition  to  the  regular  salary  or  fee. 

Personal  Chattels.— Things  movable,  which  may  be 
annexed  to  or  attendant  upon  the  person  of  the  owner  and 
carried  about  with  him  from  one  part  of  the  world  to  another. 

Personal  Property.— The  right  or  interest  less  than  a 
freehold  that  a  man  has  in  realty,  or  any  right  or  interest  in 
things  movable*. 

Petit  Jury. — (Pronounced  petty.)  A  jury  of  twelve  men 
impaneled  to  try  causes  in  a  court  of  justice.  Called  petit  in 
distinction  from  the  grand  jury,  which  see. 


320  THE   LAW   OF    BUSINESS. 

Petty  Larceny. — In  Ohio,  larceny  of  sum  less  than 
thirty-five  dollars.    See  Larceny. 

Pettifogger. — One  who  pretends  to  be  a  lawyer,  but 
possesses  neither  knowledge  of  law  nor  principle. 

Pickpocket. — A  thief  who  steals  from  the  pockets  or  per- 
son of  another  without  putting  him  in  fear. 

Piracy. — A  robbery  or  forcible  depredation  on  the  high 
seas  without  lawful  authority  (as  letters  of  marque)  and  done 
in  the  spirit  of  universal  hostility.  In  Torts. — Plagiarizing  or 
stealing  from  a  book,  engraving  or  other  work  for  which  a 
copyright  has  been  taken  out. 

Pirate. — A  sea  robber. 

Plagiarism. — The  act  of  appropriating  the  ideas  and 
language  of  another  and  passing  them  for  one's  own  — Bouvier. 

Plaintiff. — The  one  who  seeks  a  remedy  at  law  for  an 
injury  to  his  rights. 

Plea. — Equity. — A  special  answer  showing  cause  why  the 
suit  should  be  dismissed  or  delayed  or  barred,  In  Law — The 
defendant's  answer  by  matter  of  fact  to  the  plaintiff's  declara- 
tion. This  differs  from  demurrer,  which  is  an  answer  by  mat- 
ter of  law. 

Pleading. -^-The  stating  in  a  legal  form  of  the  facts  which 
constitute  the  plaintiff's  cause  of  action  or  the  defendant's 
ground  for  defense. 

Plenipotentiary. — Possessing  full  powers. 

Poaching. — Unlawful  entering  land  in  the  night  time, 
armed,  with  intent  to  take  or  destroy  game. 

Poison. — Any  substance  having  an  inherent  injurious 
property  which  renders  it  capable  of  destroying  life  when 
taken  into  the  system. 

Polyandry. — The  condition  of  a  woman  who  has  several 
husbands.     Polyandry  is  legalized  in  Thibet  only. 

Polygamy. — The  state  of  a  person  who  marries  another 


MEANING  OF  LEGAL  TERMS.  321 

with  the  knowledge  that  he  already  has  two  or  more  wives  or 
that  she  has  two  or  more  husbands. 

Post  Mortem. — After  death. 

Posthumous  Child. — A  child  born  after  the  death  of  its 
father,  or  when  the  Caesarean  operation  is  performed  after  the 
death  of  the  mother. 

Power  of  Attorney. — An  instrument  authorizing  a  per- 
son to  act  as  the  agent  or  attorney  of  the  person  granting  it. 

Practice. — The  conducting  of  suits  in  the  courts,  through 
their  various  stages,  in  the  form  and  manner  and  according  to 
the  principles  of  law  and  rules  laid  down  by  the  respective 
courts. 

Precedents. — Legal  acts,  instruments  or  decisions  which 
are  deemed  worthy  to  serve  as  rules  or  models  for  subsequent 
cases. 

Pre-Emption-Right. — The  right  given  to  settlers  upon 
public  lands  of  the  United  States  to  purchase  them  at  the 
lowest  price  in  preference  to  all  others. 

Pregnancy. — The  state  of  a  female  who  has  within  her 
womb  a  fecundated  germ  which  gradually  develops.  This 
subject  presents  itself  to  the  attorney  usually  in  one  of  two 
forms:  i.  where  an  attempt  is  made  to  conceal  pregnancy;  2. 
where  an  attempt  is  made  to  feign  or  pretend  to  be  pregnant. 
The  first  may  be  done  to  avoid  disgrace  and  secretly  to  ac- 
complish the  destruction  of  the  foetus.  The  second  may  be 
attempted  to  gratify  the  wishes  of  a  husband;  to  extort  money 
from  a  man;  to  avoid  or  delay  the  death  punishment;  or  to  de- 
prive the  legal  heir  of  his  just  claims.  (This  last  can  only,  of 
course,  be  accomplished  by  carrying  the  imposition  to  a  sup- 
posed birth  and  having  a  new-born  child  furnished  to  order  to 
fill  the  requirement.)  In  legal  cases  involving  these  questions 
the  signs  of  pregnancy  become  very  important.  For  the  ben- 
efit of  those  interested  in  either  the  legal  or  medical  aspects 


322  THE    LAW   OF   BUSINESS. 

of  the  subject  a  short  treatise  has  been  prepared,  which  will  be 
found  in  another  part  of  this  work. 

Premeditation. — A  design  formed  to  commit  a  crime  or 
do  some  other  act  before  it  is  done. 

Prima  Facie. — At  first  view  or  appearance.  Prima  facie 
evidence  of  a  fact  will  establish  that  fact  in  law  unless  re- 
butted. 

Privies. — Persons  who  have  an  interest  together  in  any 
action  or  thing. 

Process. — The  means  of  compelling  a  defendant  to  ap- 
pear in  court  in  both  civil  and  criminal  cases. 

Promise  of  Marriage. — A  contract  mutually  entered 
into  between  a  man  and  a  woman  that  they  will  marry  each 
other. 

Promissory  Note. — A  written  promise  to  pay  a  certain 
sum  of  money  at  a  future  fixed  time  unconditionally. 

Property. — The  right  and  interest  a  man  has  in  lands 
and  chattels  to  the  exclusion  of  others. 

Prosecutor. — The  one  who  prosecutes  another  for  a 
crime  in  the  name  of  the  State. 

Prostitution. — The  common  lewdness  of  women  for  hire. 

Protest. — A  solemn  declaration  in  writing  by  a  notary 
public,  usually  under  seal,  protesting  that  all  parties  liable  for 
loss  or  damage  by  the  non-acceptance  or  non-payment  of  a 
bill  of  exchange,  or  the  non-payment  of  a  note,  will  be  held 
responsible  to  the  holder  of  such  instrument. 

Punishment. — Some  pain  or  penalty  inflicted  by  war- 
rant of  law,  and  by  judgment  and  command  of  some  lawful 
court  on  a  person  for  the  commission  of  a  crime  or  misde- 
meanor, or  for  failing  to  perform  some  act  required  by  law. 

Quack. — An  ignorant  and  unskillful  practitioner  of  medi- 
cine or  surgery.  To  call  a  regular  physician  a  quack  is  ac- 
tionable. 


MEANING  OF  LEGAL  TERMS.  323 

Quarentine. — Forty  days.  Ships  from  foreign  ports 
thought  to  be  infected  with  a  contagious  or  malignant  disease, 
were  originally  held  off  the  shore  forty  days  and  not  per- 
mitted to  land  or  have  any  communication  whatever.  The 
period  is  now  shorter,  or  whatever  the  authorities  choose  to 
make  it.  This  restraint  is  termed  quarantine.  To  break 
quarantine  without  authority  is  a  misdemeanor. 

Quash. — To  overthrow  or  annul.  Defective  indictments 
may  be  quashed;  also  irregular  civil  proceedings. 

Quasi. — As  if;  similar  to;  resembling,  but  slightly  differ- 
ent. 

Quickening. — The  sensation  a  mother  has  of  the  move- 
ment of  the  child  in  her  womb. 

Quit-Claim. — A  form  of  deed  of  the  nature  of  a  release. 

Quo  Warranto. — A  writ  by  which  the  government  at- 
tempts to  recover  an  office  or  franchise  from  a  person  or  cor- 
poration holding  it.  The  writ  commands  the  defendant  to 
appear  and  show  by  what  authority  {quo  warranto)  he  holds 
the  office. 

Quorum. — The  number  of  members  of  a  legislative  or 
any  deliberative  body  required  by  its  laws  to  transact  business. 

Rape.— The  carnal  knowledge  of  a  woman  by  a  man  forci- 
bly and  unlawfully  against  her  will.  Man  in  this  definition 
means  a  male  of  the  human  species  of  the  age  of  fourteen  and 
upwards. 

Rebellion. — The  act  of  taking  up  arms  traitorously 
against  the  government. 

Receipt. — A  written  acknowledgement  of  the  payment  of 
money  or  the  delivery  of  chattels. 

Recognizance. — An  obligation  of  record,  entered  into 
before  a  court  or  officer  duly  authorized  for  that  purpose,  with 
a  condition  to  do  some  act  required  by  law  which  is  therein 
specified.— Blackstone. 


324  THE   LAW   OF   BUSINESS. 

In  civil  cases  the  condition  of  a  recognizance  is  that  the 
party  and  his  surety  will  pay  the  debt,  interest  and  costs,  re- 
covered by  the  plaintiff  under  certain  contingencies. 

In  criminal  cases  the  condition  is  that  the  party  shall  ap- 
pear before  the  court,  at  a  specified  time,  to  answer  to  such 
charges  as  are  or  shall  be  made  against  him,  or  that  he  shall 
keep  the  peace  or  be  of  good  behavior. 

Redress. — Satisfaction  for  an  injury  sustained. 

Release. — The  conveyance  of  a  man's  interest  in  a  thing 
to  some  other  person  who  already  has  some  interest  therein  or 
possession  thereof.  The  operative  words  are  "remise,  release 
and  forever  quitclaim." 

Remedy. — The  means  employed  to  enforce  a  right  or  re- 
dress an  injury. 

Rent. — A  certain  profit  issuing  out  of  lands  and  tene- 
ments in  return  for  their  use. 

Replevin. — An  action  to  regain  possession  of  chattels 
which  have  been  taken  from  the  plaintiff  unlawfully. 

Reprieve. — The  temporary  withdrawing  of  a  sentence  of 
execution. 

Reprisals. — The  taking  by  force  by  one  nation  of  a  thing 
which  belongs  to  another  in  return  or  satisfaction  for  an  in- 
jury committed. 

Repudiate. — To  refuse  a  right  when  offered.  A  more 
recent  meaning  is  to  refuse  to  pay;  as  the  State  has  repudiated 
its  debt. 

Reputation. — The  opinion  generally  entertained  of  a 
person  by  those  who  know  him. 

Requisition. — The  demand  made  by  the  Governor  of  one 
State  on  the  Governor  of  another  for  a  fugitive  from  justice. 
See  Extradition. 

Rescue. — Forcibly  and  knowingly  freeing  another  from 
arrest  or  imprisonment. 


MEANING  OF  LEGAL  TERMS.  325 

Residue. — That  which  is  left. 

Restitution. — Restoring  to  the  rightful  owner  what  be- 
longs to  him. 

Retaining  Fee. — A  fee  given  to  an  attorney  upon  con- 
sulting him,  in  order  to  secure  his  future  services. 

Revenue. — The  income  of  the  government  from  taxation, 
duties,  etc. 

Reward. — An  offer  of  recompense  for  the  performance  of 
some  act  for  the  public  good.  A  person  may  be  a  witness  in  a 
criminal  case  although  he  expects  to  receive  a  reward  upon 
the  conviction  of  the  prisoner. 

Right. — A  well  founded  claim. 

Robbery. — The  felonious  and  forcible  taking  from  the 
person  of  another,  goods  or  money  of  any  value,  by  violence 
or  putting  him  in  fear.  Robbery  is  larceny  from  the  person 
accompanied  by  violence  or  putting  in  fear. 

Sale. — An  agreement  by  which  one  of  the  contracting 
parties,  called  the  seller,  transfers  possession  of  a  thing  and 
title  to  it  to  the  other,  called  the  buyer,  for  a  stipulated  price 
in  money. 

Salvage. — The  compensation  allowed  for  saving  a  ship  and 
her  cargo  from  peril ;  also,  the  goods  and  other  property  saved. 

Scilicet. — That  is  to  say;  to  wit;  namely.  It  is  usually 
written  in  an  abbreviated  form  ss.  It  comes  from  Latin  scire, 
to  know,  licet,  it  is  permitted. 

Sea-Shore. — That  space  of  land  on  the  border  of  the  sea, 
between  high  and  low  water  mark. 

Seal. — An  impression  upon  wax,  wafer,  or  some  impres- 
sionable substance.  Most  frequently  now  impressed  into  the 
body  of  the  instrument  itself  without  the  wax  or  wafer.  The 
notarial  seal  is  recognized  judicially  all  over  the  civilized 
world.  The  seal  is  used  upon  a  legal  instrument  simply  as  a 
token  of  authenticity. 


326  THE   LAW   OF   BUSINESS. 

Search-Warrant. — A  warrant  requiring  the  officer  to 
whom  it  is  addressed  to  search  a  house,  specified,  for  property 
alleged  to  have  been  stolen  and  secreted  there.  The  officer 
must  bring  the  goods,  if  found,  and  the  body  of  the  person 
occupying  the  premises,  who  must  be  named,  before  the  jus- 
tice issuing  the  warrant  or  some  other  legally  authorized  officer. 

Sedition. — In  Criminal  Law. — Raising  commotions  or 
disturbances  in  the  State;  a  revolt  against  lawful  authority. 

Seisin. — Possession  with  intention  to  claim  a  freehold  in- 
terest. 

Self-Defense. — The  protection  of  one's  person  and  prop- 
erty from  injury.  A  man  may  repel  force  by  force  in  defense 
of  his  person,  property  or  habitation,  against  any  one  who  at- 
tempts to  commit  a  forcible  felony,  as  murder,  burglary,  rape, 
arson,  robbery.  ,  He  is  not  required  to  retreat,  but  may  resist 
and  even  pursue  his  adversary  until  he  has  secured  himself 
from  all  danger. 

Senility. — The  state  of  being  old. 

Sentence. — A  judgment  or  judicial  declaration  made  by 
a  judge  in  a  cause.  Usually  judgment  is  applied  to  civil  and 
sentence  to  criminal  cases. 

Sheriff. — A  county  officer,  representing  the  executive 
power  of  the  State  in  his  county. 

Sight. — Presentment.  Used  on  bills  of  exchange  and 
drafts. 

Simony.. — The  selling  and  buying  of  holy  orders. 

Sine  Die. — Without  a  day.  Courts  and  legislative  bodies 
adjourn  at  the  close  of  the  sessions  sine  die,  without  any  day 
fixed  for  reassembling. 

Slander. — Words  spoken  or  written  of  a  defamatory, 
false  and  malicious  nature,  which  are  injurious  to  the  char- 
acter of  another.  Injury  to  character  is  the  ground  of  all 
liability  to  an  action. 


MEANING  OF  LEGAL  TERMS.  327 

Sodomy. — A  carnal  copulation  by  human  beings  with 
each  other  in  an  unnatural  manner,  or  with  a  beast.  It  may- 
be committed  between  any  two  persons  who  both  consent, 
even  between  husband  and  wife,  and  both  may  be  indicted. 
Penetration  of  the  mouth  is  not  sodomy. 

Solvency. — The  condition  of  a  person  who  is  able  to  pay 
all  his  debts. 

Sound  Mind. — That  condition  of  mind  which  is  adequate 
to  reason  and  arrive  at  correct  conclusions  upon  ordinary 
subjects. 

Specialty. — A  writing  sealed  and  delivered  containing 
an  agreement.  The  seal  is  the  essential  thing  to  constitute 
the  writing  a  specialty. 

Specific  Performance. — The  actual  carrying  out  of  the 
express  provisions  of  a  contract  by  the  party  bound  to  per- 
form them.  If  one  of  the  parties  to  a  contract  refuse  to  ful- 
fill his  engagement  a  court  of  law  will  usually  award  damages 
to  the  injured  party.  Sometimes,  however,  damages  are  not 
a  competent  remedy.  Then  the  injured  party  goes  into  a 
court  of  equity  and  asks  for  a  specific  performance  of  the  con- 
tract. 

Ss. — See  Scilicet. 

Statute. — A  law  established  by  act  of  legislature. 

Stay  of  Execution. — The  period  during  which  no  exe- 
cution can  issue  on  a  judgment. 

Sterility. — Barrenness;  incapacity  to  produce  a  child. 

Stipulation. — A  material  condition  in  a  contract. 

Stoppage  in  Transitu. — A  resumption  by  the  seller  of 
the  possession  of  goods  not  paid  for,  while  on  their  way  to 
the  purchaser  and  before  he  has  obtained  actual  possession  of 
them. 

Subornation  of  Perjury.  — Procuring  another  to  com- 
mit legal  perjury.     The  false  oath  must  actually  be  taken. 


328  THE    LAW   OF   BUSINESS. 

SubpcEna. — (Latin — under  pe?ialty.)  A  writ  command- 
ing a  person  to  appear  in  court  to  give  testimony,  under  pen- 
alty. 

Suffrage. — Vote;  act  of  voting. 

Suicide. — Self-destruction. 

Suit. — An  action  in  a  court  of  justice. 

Summons. — A  writ  notifying  a  party  to  appear  in  court 
and  answer  to  a  complaint  made  against  him. 

Sumptuary  Laws. — Laws  relating  to  the  personal  and 
family  expenses,  intended  to  restrain  excess  in  food,  drink, 
clothing,  furniture,  etc. 

Sunday. — The  first  day  of  the  week.  In  most  States  it 
begins  at  1 2  o'clock  on  the  night  between  Saturday  and  Sun- 
day and  lasts  twenty-four  hours.  In  some  of  the  New  Eng- 
land States  it  begins  at  sunset  Saturday  evening  and  ends 
same  time  next  day.  In  some  States  contracts  made  on  Sun- 
day are  void,  but  in  general  they  are  binding  if  good  in  other 
respects.  Notes  and  bills  of  exchange  falling  due  on  Sunday 
should  be  paid  on  Saturday. 

Surety. — A  person  who  binds  himself  for  the  payment  of 
a  sum  of  money,  or  for  the  performance  of  something  else, 
for  another,  who  is  already  bound  for  the  same. 

Suretyship. — An  undertaking  to  answer  for  the  debt, 
default  or  miscarriage  of  another,  the  surety  becoming  bound 
as  the  principal  or  original  debtor  is  bound.  Suretyship  dif- 
fers from  guaranty  in  this :  suretyship  is  a  primary  obligation 
to  see  that  the  debt  is  paid,  while  guaranty  is  a  collateral 
undertaking,  essentially  in  the  alternative,  to  pay  the  debt  if 
the  debtor  does  not  pay  it.  A  surety  may.  be  sued  as  a 
promisor.  A  guarantor  must  be  sued  specifically  on  his  con- 
tract. Guaranty  applies  only  to  contracts  under  seal.  Surety- 
ship applies  to  all  obligations  either  under  seal  or  by  parol. 

Tacit. — Silent;  implied  but  not  expressed. 


MEANING  OF  LEGAL,  TERMS.  329 

Tariff. — Customs,  duties  or  tribute  payable  on  merchan- 
dise to  the  general  government. 

Tax. — A  contribution  imposed  by  the  government  on  in- 
dividuals for  the  support  of  the  State. 

Tenant. — One  who  holds  or  possesses  lands  or  tenements 
temporarily  which  belong  to  another.  The  terms  of  the  oc- 
cupancy are  usually  set  forth  in  an  instrument  called  a  lease. 

Tender. — An  offer  to  deliver  something,  or  pay  some- 
thing in  accordance  with  a  contract,  and  in  such  a  way  as  to 
require  no  further  act  by  the  party  making  the  offer  to  com- 
plete the  transfer. 

Tenement. — Everything  of  a  permanent  nature  that  may 
be  holden. 

Tenure. — The  mode  by  which  a  man  holds  an  estate  in 
lands. 

Testament. — A  will. 

Testator. — One  who  has  made  a  testament  or  will. 

Testify. — To  give  evidence  according  to  law. 

Third  Parties. — Persons  who  are  not  parties  to  a  con- 
tract or  agreement  by  which  their  interest  in  the  thing  con- 
veyed is  sought  to  be  effected. 

Title. — The  means  whereby  the  owner  of  lands  has  just 
possession  of  his  property.  This  definition  applies  to  lands 
only. 

Title  Deeds.— Those  deeds  or  instruments  which  are 
evidence  of  the  title  of  the  owner  of  an  estate. 

Tort. — A  private  wrong  or  injury,  independent  of  contract. 

Traverse.— To  deny. 

Treason. — Against  the  United  States,  according  to  the 
Constitution,  consists  in  "levying  war  against  them,  or  in  ad- 
hering to  their  enemies,  giving  them  aid  and  comfort."  It  can 
only  be  committed  by  a  person  who  owes  allegiance  to  the  gov- 
ernment. In  monarchies,  an  attempt  to  kill  the  king  is  treason. 


33©  THE    LAW    OF    BUSINESS. 

Treaty. — A  compact  or  agreement  between  two  or  more 
independent  nations  with  a  view  to  public  welfare. 

Trespass. — Any  unlawful  act,  committed  with  violence,  to 
the  person,  property  or  rights  of  another.  Also,  and  more 
commonly,  any  unauthorized  entry  upon  the  realty  of  another 
to  the  damage  thereof. 

Trial. — The  examination  before  a  competent  tribunal,  ac- 
cording to  law,  of  the  facts  put  in  issue  in  a  cause. 

Tribunal. — A  court  of  justice. 

Trover. — An  action  to  recover  damages  for  goods  or  per- 
sonal chattels  which  have  been  wrongfully  converted  to  the 
use  of  another. 

Trust. — A  right  of  property  held  by  one  person  for  the 
benefit  of  another. 

Trustee. — A  person  in  whom  some  estate,  interest  or 
power  in  or  effecting  property  is  vested  for  benefit  of  another. 

Trustee  Process. — A  means  of  attaching  goods,  prop- 
erty and  credits  in  the  hands  of  a  third  person,  for  the  benefit 
of  the  attaching  creditor. 

Ultra  Vires. — Beyond  their  power.  A  term  applied  to 
those  acts  of  corporations  which  are  beyond  the  scope  of  their 
powers  as  laid  down  in  their  charter  or  articles  of  incorpora- 
tion.    As  a  rule  such  acts  are  void. 

Usage. — Long  and  uniform  practice. 

Use. — A  right  to  take  the  profits  of  land  of  which  another 
person  has  the  legal  title  and  possession.  The  person  who 
has  this  right  is  called  the  cestui  que  use. 

Usury. — The  excess  of  interest  over  the  legal  rate  charged 
for  the  use  of  money. 

Utter. — To  offer,  to  publish.  Said  of  counterfeit  money. 
To  utter  and  publish  a  counterfeit  note  is  to  represent  that 
the  note  offered  is  good.  It  is  not  necessary  for  the  note  to 
pass  to  complete  the  offense  of  uttering. 


MEANING  OF  LEGAL  TERMS.  33 1 

i 

Vagrant. — An  idle  person  who  has  no  settled  home;  who 
refuses  to  work  and  goes  about  begging;  commonly  called  a 
tramp. 

Valid. — Strong;  of  binding  force. 

Value. — Worth ;  utility.  Political  economists  use  the 
word  in  two  senses,  i.  Intrinsic  Value. — The  utility  or  adapta- 
tion of  an  object  to  the  wants  of  man.  2.  Exchangeable 
Value. — Its  worth  in  purchasing  other  goods.  An  object  may 
have  great  power  to  minister  to  our  wants,  great  utility,  and 
no  exchangeable  value,  as  water. 

Variance. — A  disagreement  between  the  allegation  and 
the  evidence,  or  between  two  parts  of  a  legal  proceeding  that 
ought  to  agree  together. 

Vendor. — The  seller. 

Vendor's  Lien. — An  equitable  lien  allowed  the  vendor  of 
land  for  the  purchase  money  where  the  deed  expresses,  con- 
trary to  the  fact,  that  the  money  has  been  paid. 

Venue. — A  neighborhood,  place  or  county,  in  which  an 
injury  was  done  or  crime  committed,  and  from  which  the  jury 
must  be  drawn  to  try  the  issue. 

Verdict. — The  unanimous  decision  of  a  jury  reported  to 
the  court,  on  the  matters  submitted  to  them  in  the  trial  of  a 
cause. 

Versus. — Against;  usually  written  vs.  or  v. 

Vest. — To  give  an  immediate  fixed  right  of  present  or 
future  enjoyment. 

Veto. — The  refusal  of  an  executive  officer,  whose  assent 
is  necessary  to  perfect  a  law  passed  by  the  legislature,  to  give 
such  assent. 

VideliciT. — (Latin — to  wit;  namely.)  Usually  contracted 
to  viz. 

Violence. — The  abuse  of  force;  that  force  which  is  em- 
ployed against  common  right,  against  law  and  against  public 
liberty. 


332  THE   LAW   OF   BUSINESS. 

Void. — That  which  has  no  force  or  effect. 

Voidable. — That  which  has  some  force  or  effect,  but 
which  in  consequence  of  some  inherent  quality  may  be  legally 
annulled  or  avoided.  An  infant's  note  or  contract  with  an 
adult  is  a  familiar  example.  The  infant  may  avoid  or  con- 
firm the  contract  upon  coming  of  age. 

Voir  Dire. — (French — to  say  the  truths)  A  preliminary 
examination  of  a  witness  to  ascertain  whether  he  is  com- 
petent. 

Waiver. — The  refusal  to  accept  a  right. 

Ward. — An  infant  placed  by  authority  of  law  in  the  care 
of  a  guardian. 

Warehouse. — A  place  adapted  to  the  reception  and  stor- 
age of  goods  and  merchandise. 

Warrant. — A  writ  issued  by  a  justice  of  the  peace  or 
other  authorized  officer  and  directed  to  a  constable  or  other 
proper  person,  ordering  him  to  arrest  a  person  therein  named, 
charged  with  committing  some  offense,  and  bring  him  before 
the  justice. 

Warranty. — In  Real  Property. — A  covenant  by  which 
the  grantor  of  an  estate  and  his  heirs  are  bound  to  warrant 
and  defend  the  title  to  the  lands  sold.  In  general  contracts 
it  is  an  engagement  or  undertaking  that  a  certain  fact  regard- 
ing the  subject  of  a  contract  is,  or  shall  be,  as  it  is  declared  or 
promised  to  be. 

Way-Bill. — The  description  of  goods  sent  with  a  com- 
mon carrier  by  land;  if  the  goods  are  carried  by  water  the 
instrument  is  called  a  bill  of  lading. 

Will. — The  disposition  of  one's  property  to  take  effect 
after  death. 

Witness. — One  who  testifies  under  oath  to  what  he  knows 
of  his  own  knowledge,  not  acquired  by  hearsay. 

Writ. — A  mandatory  precept  issuing  from  a  court  of  law 


MEANING  OF  LEGAL  TERMS.  333 

in  the  name  of  the  State  and  requiring  the  defendant  to  do 
something  therein  mentioned. 

Ward  in  Chancery. — An  infant  or  lunatic  who  is  under 
the  protection  of  the  court  of  equity  or  the  court  of  chancery. 

Without  Prejudice. — Anything  said  or  done  without 
prepcdice  is  without  affecting  any  one's  rights  in  the  contro- 
versy or  question  at  issue. 

Without  Recourse. — These  words  are  sometimes  writ- 
ten by  an  endorser  of  a  promissory  note  beneath  his  name 
when  he  desires  to  relieve  himself  from  liability  as  an  uncon- 
ditional endorser.  They  mean  simply  that  the  purchaser  of 
the  note  shall  not  have  recourse  upon  the  endorser  in  case  the 
note  is  not  paid  when  due. 


CHAPTER  II. 

REAL    PROPERTY. 

ALL  property  is  divided  into  two  great  classes,  real  and 
personal.  The  names  of  these  divisions  were  derived 
from  the  nature  of  the  remedy  in  case  an  owner  was 
deprived  of  possession.  In  the  case  of  lands  if  the 
plaintiff  was  successful  he  recovered  the  real  thing  lost,  that  is, 
the  actual  lands  or  tenements  of  which  he  was  dispossessed. 
If  the  thing  was  a  chattel  his  remedy  was  against  the  person 
of  him  who  took  it  away.     Hence  the  terms  real  and  personal. 

It  is  frequently  difficult  to  distinguish  between  real  and 
personal  property,  although  there  are  many  things  that  are  al- 
ways personal,  and  a  few  that  are  always  real.  Land  is  always 
real.  As  a  rule  every  thing  erected  upon  land,  or  growing 
upon  it,  or  lying  beneath  the  surface  of  the  land,  is  real.  But 
a  house  may  become  personal,  as  if  a  man  erect  one  on  the 
land  of  another  on  certain  conditions,  expecting  to  remove  it. 
In  order  to  make  things  built  or  erected  on  land  real  they 
should  be  erected  or  annexed  by  the  owner  of  the  land.  Any 
machine  or  other  thing  so  attached  to  a  house  that  it  can  not 
be  removed  without  destroying  or  injuring  the  house  will  pass 
with  the  house  when  sold  unless  specially  reserved. 

Keys,  blinds,  bolts,  hinges,  nails,  and  many  other  things 
are  personal  when  on  the  merchant's  shelf  for  sale,  but  be- 
come real  when  attached  to  a  building. 

Trees  in  a  forest  are  real ;  trees  planted  by  a  nurseryman  to 
be  sold  and  transplanted  are  personal. 

Crops  ready  for  harvest  are  personal  and  may  be  levied 
upon  as  chattels.     Crops  or  trees  sold  to  be  cut  and  carried 

334 


REAL    PROPERTY.  335 

away  are  personal.  When  land  is  sold  on  which  are  growing 
crops  the  custom  is  to  fix  a  future  day  for  delivery  by  which 
time  they  may  be  removed. 

Fence  rails  are  real  estate,  whether  in  a  fence  or  piled  up 
to  be  used  in  a  fence;  but  if  piled  up  to  be  sold  they  are  per- 
sonal. 

Rolling  stock  on  railroads,  as  cars  and  engines,  belong  to 
the  realty ;  the  stock  in  a  railroad,  that  is  the  stockholder's  in- 
terest is  personal. 

As  a  rule  a  tenant  may  remove  whatever  he  has  affixed  to 
leased  premises  provided  he  can  do  so  without  injury  thereto. 
This  right  is  not  defeated  by  a  sale  of  the  premises  by  his 
landlord  to  another  party.  But  the  fixtures  must  be  removed 
by  the  tenant  before  his  term  expires  or  he  loses  the  right;  his 
fixtures  then  become  part  of  the  realty.  If  the  fixture  is  per- 
mitted to  remain  temporarily,  with  the  landlord's  consent,  or 
if  it  is  affixed  to  the  land  of  another  with  his  consent,  it  may 
be  removed. 

Realty  is  divided  into,  1.  L,ands.  2.  Tenements.  3.  Her- 
editants.  Lands  include  the  soil  itself,  houses,  trees,  minerals, 
coal,  water,  etc. 

Tenements  are  rights,  interests  and  privileges  in  lands  held 
so  as  to  create  a  tenancy.  Blackstone  says  "  the  thing  held  is 
a  tenement,  and  the  possessor  of  it  a  tenant,  and  the  manner 
of  possession  is  called  tenure." 

Hereditaments  are  things  that  can  be  inherited,  as  lands, 
tenements,  anything  real,  personal  or  mixed  that  may  descend 
to  an  heir.  Hereditaments  are  corporeal  and  incorporeal. 
Corporeal  when  of  a  tangible  or  substantial  nature;  incor- 
poreal when  only  an  ideal  right  existing  in  contemplation  of 
law,  as  the  right  of  way  through  another's  land,  or  the  right 
of  water  through  the  land  of  another. 

Various  names  are  used  to  indicate  the  different  degrees  of 
interest  that  a  man  may  have  in  lands,  called  an  estate. 


336  THE    LAW   OF   BUSINESS. 

FEE   SIMPLE. 

Fee  simple  is  an  estate  of  unlimited  duration,  and  is  abso- 
lutely unqualified  in  every  respect,  transmissible  to  the  heirs 
of  the  owner  absolutely  and  simply  without  any  condition  at- 
tached to  the  tenure.  This  is  the  largest  estate  a  man  can 
have  in  lands. 

Fee  Tail  means  a  mutilated  fee.  It  is  a  fee  conveyed  with 
restrictions  as  to  its  alienation.  There  is  no  fee  tail  in  the 
United  States. 

LIFE   ESTATE. 

Life  estate  is  a  freehold,  not  of  inheritance,  held  by  the 
tenant  for  his  own  life  or  the  life  or  lives  of  one  or  more  other 
persons ;  or  for  an  indefinite  period  which  may  endure  for  the 
life  or  lives  of  persons  in  being  and  not  beyond  the  period  of 
a  life.  Life  estates  are  created  by  deed,  or  devise,  or  act  of 
law  as  in  the  case  of  dower  and  curtesy.  An  estate  conveyed 
to  a  woman  during  her  widowhood  is  a  life  estate,  because  she 
can  hold  it  as  long  as  she  lives  by  not  marrying.  Same  is 
true  of  an  estate  to  a  man  and  wife  during  coverture,  or  to  a 
man  as  long  as  he  resides  in  a  certain  place  or  as  long  as  he 
shall  maintain  a  park  upon  the  land.  A  tenant  for  life  may 
convey  his  interest  by  deed  or  sub-let  the  whole  or  any  part 
of  it. 

.  Emblements. — The  life  tenant  has  rights  to  the  profits  of 
the  annual  crops  to  repay  him  for  his  labor.  These  annual 
crops  are  called  emblements.  This  right  accrues  to  his  exe- 
cutor or  administrator  in  case  of  his  death.  Emblements  are 
those  products  which  are  sown  or  planted  in  one  part  of  the 
year  and  reaped  in  another  part  of  the  same  year,  as  corn, 
wheat,  barley,  potatoes,  flax,  beans,  etc.  Grass  and  clover  are 
not  emblements  because  not  of  annual  planting.  Trees  raised 
by  nurserymen  are  a  seeming  exception,  being  emblements, 


LIFE   ESTATE.  337 

because  they  may  be  transplanted  in  one  year  or  more.  The 
crop  must  have  been  planted  in  the  life  and  occupancy  of  the 
tenant,  else  he  can  not  claim  emblements.  A  tenant  whose 
term  is  certain  can  not  claim  emblements,  for  if  a  man  plant  a 
crop  which  he  knows  he  can  not  gather  before  his  term  ex- 
pires he  must  lose  his  labor — his  successor  gets  the  benefit. 
If  a  tenant  abandon  hi"s  tenancy  he  loses  his  rights  to  emble- 
ments, but  not  so  if  the  lessor  expel  him. 

Waste. — As  to  timber  a  tenant  may  cut  what  he  needs  for 
present  use  but  not  for  future  use ;  that  would  be  waste.  He 
may  not  cut  wood  either  to  be  used  off  the  premises.  Neither 
can  he  sell  wood  or  timber,  or  coal  or  ore  of  any  kind  though 
he  need  the  proceeds  for  his  support.  Neither  can  he  make 
brick  out  of  the  land  for  sale,  nor  ware  out  of  clay  under  the 
soil. 

A  Tenant  at  Sufferance  is  one  who  has  come  into  posses- 
sion by  a  lawful  demise  but  after  his  term  is  ended  holds  over 
wrongfully,  continuing  possession.  He  has  no  rights,  only 
naked  possession  and  may  be  removed  without  notice.  He  is 
not  entitled  to  emblements.  If  a  tenent  sell  his  growing 
crops  and  then  terminate  his  tenancy  by  his  own  act  the  per- 
son who  purchased  the  crops  has  no  claim  for  emblements. 
The  right  of  emblements  carries  with  it  the  rights  to  enter 
upon  the  land,  cultivate  the  crop  if  a  growing  one,  cut  and 
harvest  it,  and  if  interfered  with  in  the  exercise  of  these 
rights  by  the  landlord  or  any  other,  he  has  an  action  for 
damages. 

Questions  of  Emblements  and  Waste  are  determined  to  a 
great  extent  by  the  customs  and  usages  of  different  localities 
and  by  the  statutes  of  the  State.  If  a  tenant  commit  a  waste 
the  one  to  whom  the  estate  reverts  has  an  immediate  action 
against  him.  ,  Continued  waste  may  be  prevented  by  injunc- 
■  tion. 


338  THE   LAW   OF   BUSINESS. 

The  two  most  important  classes  of  life  tenancy  are  Dower 
and  Curtesy.  For  the  meaning  of  these  terms  see  "  Definition 
of  Legal  Terms." 

A  widow  has  no  dower  by  the  common  law  in  an  estate  of 
her  husband's  for  a  term  of  years  however  long.  In  Missouri 
however  by  statute  her  right  attaches  to  a  leasehold  of  twenty 
years,  and  many  other  States  have  similar  statutes.  The 
right  of  dower  extends  to  one-third  of  all  lands,  tenements 
and  hereditaments  of  which  her  husband  may  have  been 
seized  during  coverture  in  fee  or  in  tail.  The  laws  of  the 
place  where  the  property  is  located  determine  her  right  of 
dower,  not  the  laws  of  her  residence.  She  is  not  entitled  to 
dower  in  real  estate  purchased  by  a  firm  of  which  her  hus- 
band was  a  partner,  and  held  for  partnership  purposes  until 
the  partnership  debts  have  been  paid.  A  husband  may  defeat 
dower  in  an  estate  which  he  purchases  by  having  it  convej-ed 
to  trustees  for  himself  or  his  heirs.  The  requisites  to  support 
dower  are  legal  marriage,  seisin  and  death  of  husband. 

A  woman  may  bar  her  dower  in  most  States  by  elopement 
and  adultery;  in  others  it  requires  divorce  when  the  woman  is 
in  fault;  if  she  is  innocent  the  statutes  of  most  States  preserve 
her  rights.  She  can  sign  away  her  right  of  dower  if  it  is  ex- 
pressly so  stipulated  in  the  deed  and  in  a  few  States  a  joint 
conveyance  by  husband  and  wife  will  bar  her  dower.  If  a 
mortgage  given  by  husband  before  marriage,  or  by  a  husband 
and  wife  after  marriage,  is  foreclosed  all  right  of  dower  is 
barred.  In  some  States,  however,  the  wife  must  be  made  a 
party  to  the  foreclosure  proceedings.  In  some  States  a  wife's 
dower  is  subject  to  liens  of  husband's  creditors.  Land  con- 
veyed by  the  husband  for  public  use,  as  a  school  or  street,  is 
not  subject  to  dower. 

The  husband's  interest,  or  curtesy,  is  subject  to  all  incum- 
brances under  which  the  wife  held  the  estate.     This  interest 


DEEDS.  339 

is  liable  for  his  debts.  He,  as  tenant  by  curtesy,  is  subject  to 
all  the  limitations  and  obligations  imposed  upon  other  life 
tenants.  He  becomes  tenant  by  curtesy  immediately  upon 
the  death  of  his  wife  and  has  nothing  to  do  to  consummate 
his  title;  while  the  widow  must  have  her  dower  set  out  for 
her  by  process  of  law. 

When  it  is  desired  to  convey  an  estate  to  a  married 
woman  for  her  own  use  and  to  be  free  from  her  husband's 
control,  use  the  words,  "to  her  sole  and  separate  use  forever." 

In  most  of  the  States  the  husband  must  join  the  wife  in 
conveyances  of  her  real  estate.  If  he  improves  his  wife's  es- 
tate the  law  infers  that  it  was  done  for  his  wife's  benefit  and 
he  can  not  recover  for  it  unless  there  is  a  special  statute.  If 
the  wife  die  without  issue  the  husband  has  no  claim  on  her* 
estate  against  creditors  or  next  of  kin,  except  the  right  of  em- 
blements. DEEDS. 

A  deed  must  contain  first  the  full  names  of  the  grantor 
and  grantee,  that  is  the  seller  and  buyer;  then  a  statement  of 
the  consideration,  money,  exchange  of  property,  etc.,  for  the 
conveyance;  also  an  acknowledgement  of  the  receipt  of  the 
same;  then  a  full  description  of  the  property.  After  this  fol- 
lows the  Habendum  clause,  which  begins,  "To  have  and  to 
hold;"  this  clause  defines  the  estate  conveyed,  whether  for  years, 
life  or  forever.  Next  in  most  deeds  comes  the  Warranty 
clause,  which  begins:  "And  I  will,  and  my  executors  and  ad- 
ministrators shall  warrant  and  defend,"  etc. 

The  Testimonium  clause  follows,  beginning:  "In  witness 
whereof"  etc.  Then  follow  the  date,  signature  and  seal — (the 
seal  is  not  required  in  all  States),  then  the  signature  of  the 
witnesses  (when  required),  then,  last,  the  acknowledgement. 
This  is  done  before  a  Notary  Public  or  Justice  of  the  Peace, 
and  acknowledges  the  instrument  to  be  the  free  act  and  deed 
of  the  grantor. 


340  THE   LAW   OF   BUSINESS. 

Sometimes  the  grantor  desires  to  reserve  something  to 
himself  rising  or  issuing  out  of  the  thing  granted.  This  is 
done  by  inserting  immediately  after  the  Habendum  clause, 
what  is  called  a  Reddendum  clause,  which  begins  thus:  "Sav- 
ing and  excepting."  An  accurate  description  of  the  thing  re- 
served should  follow. 

If  there  are  any  conditions  to  defeat,  extend  or  commence 
the  estate,  they  should  be  stated  with  great  clearness,  and 
should  follow  the  Habendum  clause  and  usually  begin  with  the 
words:  "Provided,  however,"  etc.  The  most  important  of 
these  is  the  redemption  clause  in  a  mortgage.  If  the  grantor 
is  a  married  man  it  is  necessary  in  most  States  for  the  wife  to 
release  her  dower.     This  should  follow  the  Warranty  clause. 

Quitclaim  deeds  differ  from  warranty  deeds  in  their  wording 
in  three  important  points:  i.  Instead  of  the  words  " give, 
grant,  bargain,  sell  and  convey,"  the  quitclaim  has  the  words, 
"remise,  release  and  forever  quitclaim."  2.  In  the  encum- 
brance clause,  after  the  word  encumbrance  should  follow  the 
words,  "made  or  suffered  by  me."  And  state  what  mortgages 
there  are  on  the  estate,  if  any.  3.  In  the  warranty  clause, 
after  the  words,  "demands  of  all  persons,"  add  these  words, 
"claiming  by  or  through  or  under  vie,  but  against  none  others:'' 

Trust  deeds  are  made  for  the  purpose  of  creating  a  trust  in 
one  party  for  the  benefit  of  another.  A  father  may  desire  to 
give  his  daughter  a  farm  upon  the  eve  of  her  marriage,  but 
not  desiring  her  husband  to  have  any  control  over  it,  or  fear- 
ing her  extravagance,  he  will  deed  it  to  a  friend,  in  whom  he 
has  confidence,  in  trust  for  his  daughter's  use,  and  under  such 
restrictions  as  he  may  see  fit  to  impose. 

FORM    OF   WARRANTY    DEED. 

Know  all  Men  by  these  Presents,  That  John  Doe,  of 
Covington,  in  Kenton  County,  State  of  Kentucky,  in  consider- 


FORM    OF   WARRANTY    DEED.  34 1 

ation  of  Five  Thousand  Dollars  to  me  paid  by  William  Coe,  of 
Newport,  in  Campbell  County,  State  of  Kentucky,  the  receipt 
whereof  is  hereby  acknowledged,  does  by  these  presents  give, 
grant,  bargain,  sell  and  convey  unto  said  William  Coe,  his 
heirs  and  assigns,  a  certain  parcel  of  land,  situated  in  Coving- 
ton, in  Kenton  County  and  State  of  Kentucky,  bounded  and 
described  as  follows,  viz :  {here  give  a  full  and  complete  de- 
scription of  the  premises  to  be  conveyed. ) 

To  have  and  to  hold  the  above  granted  premises,  to- 
gether with  all  the  privileges  and  appurtenances  thereto  be- 
longing, unto  the  said  William  Coe,  his  heirs  and  assigns,  and 
to  their  own  use  and  behoof  forever.  And  I,  the  said  John 
Doe,  for  myself,  my  heirs,  executors  and  administrators,  do 
covenant  with  said  William  Coe,  that  I  am  lawfully  seized  in 
fee  simple  of  the  above  granted  premises,  and  that  they  are 
free  from  all  encumbrances  {if  any  encumbrances,  state  them 
here,  beginning  Saving  and  Excepting);  that  I  have  good 
right  to  sell  and  convey  the  same  as  aforesaid;  and  that  I  will, 
and  my  heirs,  executors  and  administrators  shall,  Warrant 
and  Defend  the  same  to  the  said  grantee,  his  heirs  and  as- 
signs forever,  against  the  lawful  demands  of  all  persons.  {If 
wife  releases  dower,  insert  release  here.) 

In  Witness  Whereof,  I  have  hereunto  set  my  hand  and 
seal  this,  the  18th  day  of  September,  A.  D.  1889. 

Signed  and  Sealed  in  L,.  S. 

the  presence  of  L  H. 


342  THE  tAW  OF   BUSINESS. 

State  of  Kentucky, 
Kenton  County, 


[  ss.: 


The  above  named  John  Doe  personally  appeared  before  me 
this  18th  day  of  September,  A.  D.  1889,  and  acknowledged  the 
foregoing  instrument  to  be  his  free  act  and  deed. 

^^  WILLIAM  EVARTS,  Notary  Public, 

•j    seal.  [  Kenton  County,  Kentucky. 


FORM   OF   RELEASE   OF   DOWER. 

"  And  for  the  consideration  aforesaid,  I,  Theresa  Doe,  wife 
of  said  John  Doe,  do  hereby  release  unto  said  grantee,  and  his 
heirs  and  assigns,  all  right  of,  or  to,  both  dower  and  home- 
stead in  said  premises.  In  witness  whereof  we  have  hereunto 
set  our  hands  and  seals  this,  the  18th  day  of  September,  A.  D. 
1889." 

If  the  husband  release  curtesy  the  same  form  is  used,  sub- 
stituting husband  for  wife,  and  curtesy  for  dower. 

The  tendency  of  modern  law  is  to  simplicity  in  legal  forms, 
and  now  nearly  all  the  States  have  a  short  form  of  deed. 

INDIANA   DEED — SHORT  FORM. 

This  Indenture  Witnesseth,  That  James  Monroe,  of 
Wayne  county,  in  the  State  of  Indiana,  conveys  and  warrants 
to  John  Simpkinson,  of  Brown  county,  in  the  State  of  Indiana, 
for  the  sum  of  Three  Thousand  Dollars  ($3,000),  the  following 
Real  Estate,  in  Wayne  county,  in  the  State  of  Indiana,  to-wit: 
{Here  describe  the  property  to  be  conveyed.} 

In  Witness  Whereof,  the  said  James  Monroe  has  here- 
unto set  his  hand  and  seal  this  18th  day  of  September,  A.  D. 
1889. 

JAMES  MONROE.     [Seal.] 


SHORT  FORM  OF  TRUST  DEED.  343 

State  of  Indiana,  j 
Wayne  County.     }  ss" 

Before  me,  Jesse  C.  Smith,  a  Notary  Public,  in  and  for  Said 
County,  this  18th  day  of  September,  1889,  personally  appeared 
James  Monroe,  the  grantor  herein,  and  acknowledged  the  exe- 
cution of  the  annexed  Deed. 

Witness  my  hand  and  Notarial  Seal  this  18th  day  of  Sep- 
tember, A.  D.  1889. 

JESSE  C.  SMITH,  Notary  Public, 
Wayne  County,  Indiana. 
SHORT  FORM  OF  TRUST  DEED. 

Know  all  Men  by  these  Presents,  That  I,  Thomas 
Benson,  of  Hamilton,  county  of  Butler,  State  of  Ohio,  do 
hereby  convey  and  fully  warrant  unto  James  J.  Mitchell,  of 
Cincinnati,  Hamilton  county,  Ohio,  and  Peter   Donahue,  of 

Columbus,  Franklin  county,  Ohio,  in  consideration  of 

dollars,  to  me  paid  by  the  said  Mitchell  and  Donahue,  the  fol- 
lowing described  real  estate,  situated  in  county,  State 

of ,   and  fully  described  as  follows :  {here  describe?)  to 

have  and  to  hold  the  said  granted  premises  in  trust,  neverthe- 
less, for  the  following  purposes  to- wit :  {Here  insert  in  full  the 
purposes  of  the  trust.) 

In  witness  whereof  the  said  parties  hereunto  set  their 
hands  and  seals  this day  of ,  18 . 

L,  S. 

L,  S. 

Witness  : L.  S. 

ESTATES  FOR  YEARS.— LEASES. 

The  next  estate  in  importance  after  a  life  estate  is  an 
estate  for  years  which  is  usually  brought  into  existence  by  an 
instrument  called  a  lease.  An  estate  for  years  is  an  interest 
in  lands  by  virtue  of  a  contract  for  the  possession  of  them  for 


344  THE    ^Aw   OF   BUSINESS. 

a  definite  and  limited  period  of  time.  The  contract  is  called 
a  lease. 

The  one  who  lets  the  premises  is  the  lessor.  The  one 
who  rents  or  hires,  the  lessee.  A  lease  takes  effect  on  de- 
livery. It  must  be  for  a  shorter  period  than  the  duration  of 
the  interest  of  the  lessor,  otherwise  he  would  sign  awaj^  his 
entire  interest  in  the  lands  and  it  would  become  an  assign- 
ment. The  granting  of  a  lease  always  supposes  that  the 
grantor  or  lessor  reserves  to  himself  a  reversion  in  the  prem- 
ises. A  lease  must  be  in  writing  and  signed  by  both  parties, 
otherwise  it  is  considered  only  a  tenancy  from  year  to  year, 
that  is  if  rent  is  paid;  if  no  rent  is  paid  it  is  a  tenancy  at  will. 
Most  of  the  States  have  special  statutes  on  the  subject  of 
leases.  Nearly  all  require  seals,  but  New  Hampshire  does 
not.  In  Virginia  and  Kentucky  a  lease  for  a  term  of  more 
than  five  years  must  be  sealed,  and  in  Vermont  and  Rhode 
Island  if  it  exceed  one  year.  Massachusetts  requires  all 
leases  for  more  than  ■  seven  years  to  be  under  seal  and 
recorded,  otherwise  they  are  not  good  against  third  parties 
without  notice.  Ohio  requires  for  a  lease  for  more  than  three 
years  an  acknowledgment  and  two  witnesses. 

The  form  of  expression  in  writing  a  lease  is  not  material 
so  that  it  express  the  intention  of  the  lessor  to  part  with  the 
estate  in  favor  of  the  lessee,  and  the  intention  of  the  lessee  to 
accept  the  same  under  the  conditions  imposed  for  a  certain 
period.  The  technical  words  usually  inserted  are  "demise, 
grant  and  to  farm  let''  if  the  premises  consist  of  a  farm:  or 
"demise  and  grant ;"  or  "/ease,  demise  and  let;"  any  of  these 
or  other  words  will  suffice.  The  lease  must  describe  in  clear 
and  exact  terms  the  premises  to  be  leased,  for  a  mistake  in 
this  respect  can  not  be  corrected  by  parol  evidence. 

A  lunatic,  idiot  or  infant  can  not  make  a  valid  lease,  al- 
though in  some  cases  they  may  be  lessees,  as  when  it  is  for 


LEASES.  345 

their  benefit  or  a  necessity.  An  example  would  be  a  student, 
under  age,  hiring  a  room;  it  is  a  necessity. 

If  a  person  have  no  title  to  premises  and  lease  them  to  an- 
other, and  afterward  acquire  title,  the  law  will  not  allow  him 
to  break  the  lease  upon  the  ground  that  he  had  no  title  when 
the  lease  was  made.  This  would  be  permitting  him  to  take 
advantage  of  his  own  wrong.  Neither  would  the  lessee  be 
allowed  to  shirk  any  of  his  duties  or  responsibilities  under 
the  lease  because  the  lessor's  title  was  not  good  when  the 
lease  was  made.     The  law  of  estoppel  applies  in  these  cases. 

Every  well  drawn  lease  contains  certain  conditions,  the 
violation  of  which  works  the  forfeiture  of  the  lease.  The 
most  important  of  these  are  the  payment  of  rent,  the  com- 
mitting of  waste,  keeping  in  repair,  insuring,  etc.  This  for- 
feiture clause  enables  the  lessor  to  re-enter  and  eject  the 
tenant  in  any  such  event.  But  without  this  provision  for 
re-entry  the  lessor  would  have  no  remedy,  if  rent  were  not 
paid,  or  waste  were  committed,  except  a  suit  for  damages. 

If  the  lessor  desires  to  take  advantage  of  the  forfeiture 
clause  for  non-payment  of  rent  he  should  make  demand  for 
rent  on  the  very  day  it  is  due  by  the  terms  of  the  lease  and 
before  sunset,  at  the  most  public  place  upon  the  premises 
leased,  that  is  the  front  door  if  possible,  or  of  the  lessee  in 
person  wherever  he  may  be  found.  And  if  not  at  home  de- 
mand must  be  made  any  way.  If  payment  is  tendered  at  any 
time  during  the  day  up  to  twelve  o'clock  at  night  the  tenant 
is  safe,  as  the  law  will  compel  the  lessor  to  accept.  If  a  ten- 
ant forfeits  for  non-payment  of  rent  and  afterward  tenders 
payment  and  it  is  accepted  this  acceptance  is  a  waiver  of  the 
broken  condition ;  the  landlord  can  not  then  eject  him  for  that 
failure  to  pay  although  he  may  for  some  future  remissness. 
The  lessor,  by  covenant  implied  in  the  words  demise  and  grant, 
warrants  to  the  lessee  quiet  enjoyment  during  the  term. 


346  THE   LAW   OF  BUSINESS.      • 

The  lessor  is  not  bound  to  make  all  necessary  repairs  un- 
less so  stipulated  by  express  covenant,  neither  is  he  bound  to 
remunerate  the  lessee  for  repairs  made.  If  the  lessor  has 
contracted  to  make  repairs  and  fails  to  do  so  the  lessee  is  not 
thereby  relieved  from  paying  rent. 

If  no  time  is  stipulated  for  the  payment  of  rent  it  is  pay- 
able at  the  end  of  the  year. 

The  express  covenants  of  a  lease  are  always  binding,  even 
though  the  tenant  assigns  the  lease,  and  the  lessor  accept  rent 
from  the  assignee.  Implied  covenants  end  with  the  termina- 
tion of  the  occupancy.  L,eases  are  always  assignable  unless 
expressly  forbidden  in  the  lease.  The  privilege  of  sub-letting 
is  usually  denied  by  a  clause  prohibiting  it.  The  difference 
between  an  assignment  and  a  sub-letting  is  correctly  stated 
above.  If  the  whole  term  or  all  the  unexpired  term  of  lease 
in  either  the  whole  or  a  part  of  the  premises  is  demised  it  is. 
an  assignment  and  not  a  sub-letting ;  if  the  whole  or  a  part  of 
the  premises  is  demised  for  a  term  which  expires  before  the 
termination  of  the  pre-existing  estate,  it  is  a  sub-letting.  A 
lease  supposes  a  reversion  to  the  grantor  or  lessor. 

The  formal  parts  of  a  lease,  made  as  a  deed  and  under 
seal,  are :  i .  The  date,  which  usually  fixes  the  time  of  begin- 
ning the  term,  unless  some  other  time  is  named  in  the  instru- 
ment. If  the  lease  have  no  date  the  term  will  begin  upon  de- 
livery of  lease.  2.  The  names  of  the  parties,  which  should 
be  given  in  full.  3.  The  consideration  of  the  contract,  which 
should  always  be  something,  if  only  affection.  4.  The  de- 
scription of  the  premises.  5.  The  rights  and  liabilities  of  the 
parties  in  respect  to  taxes,  repairs,  insurance,  residence  on 
premises,  fixtures,  etc.  6.  Provision  for  forfeiture  in  case  of 
waste,  or  refusal  to  pay  rent. 

It  is  the  duty  of  the  landlord  or  lessor  to  see  that  his  tenant 
has  quiet  enjoyment  of  the  premises.     He  must  not  erect  a 


LEASES.  347 

nuisance  to  make  the  tenant's  occupancy  uncomfortable.  He 
must  pay  the  taxes,  ground  rent,  interest  on  mortgage  loans, 
etc.,  unless  stipulated  in  the  lease  to  the  contrary. 

The  landlord  has  the  right  to  enter  upon  the  premises  to 
ascertain  if  waste  has  been  committed  or  injury  done  to  the 
property,  having  first  given  notice  to  the  tenant. 

If  a  leased  house  is  burned  down  the  landlord  need  not  re- 
build it,  but  he  can  collect  rent  for  the  unexpired  term,  unless 
otherwise  stipulated  in  the  lease. 

The  tenant  must  take  proper  care  of  the  premises,  so  that 
others  will  not  be  injured  thereby ;  and  return  them  to  his 
landlord  at  the  end  of  his  term  undiminished  in  value  by  any 
willful  or  negligent  act  of  his.  He  is  entitled  to  use  all  the 
privileges,  easements  and  appurtenances  belonging  to  the  es- 
tate, and  to  all  reasonable  emblements  that  are  attached  thereto. 
He  can  maintain  an  action  against  any  one  who  trespasses  on 
his  lands.  He  should  make  fair  and  reasonable  repairs  of  all 
damages  made  or  suffered  by  him,  but  he  is  not  required  to  re- 
build houses  that  have  gone  to  ruin  and  decay  during  his  ten- 
ancy; neither  is  he  required  to  put  on  a  roof,  or  do  papering, 
painting  or  whitewashing,  except  it  is  necessary  to  prevent 
decay. 

If  the  tenant  is  a  farmer  he  is  bound  to  keep  the  farm  in 
husbandmanlike  manner,  preserving  the  timber  and  ornamen- 
tal trees.  If  he  neglect  this  he  will  be  guilty  of  waste.  He  is 
liable  for  damage  for  all  injuries  occurring  to  strangers  through 
his  neglect  to  keep  the  premises  in  proper  repair  and  safe  con- 
dition, as  cellar-ways  left  open,  coal-holes  uncovered,  maintain- 
ing a  nuisance,  etc. 

His  principal  duty  is  to  pay  rent.  If  he  is  in  without  any 
special  agreement  as  to  rent  he  will  pay  only  for  the  time  of 
his  occupancy,  but  if  he  contracts  to  pay  during  the  term  he 
must  do  so,  no  matter  how  long  it  may  be,  and  no  matter  if 


348  THE   LAW  OF   BUSINESS. 

the  house  burn  down  or  be  torn  to  pieces  by  a  tornado.  But 
if  he  be  compelled  to  move  by  lawful  act  of  his  landlord  rent 
ceases. 

If  the  landlord  sell  the  premises  he  does  so  subject  to  the 
tenant's  right,  and  the  tenant  can  not  be  removed  by  the  pur- 
chaser. The  tenant  can  not  substitute  another  tenant  in  his 
place  and  thus  escape  his  responsibilities. 

A  lease  terminates  with  the  expiration  of  the  time  named 
in  the  instrument.  It  may  be  made  to  terminate  sooner  in 
different  ways :  r.  By  forfeiture  for  waste,  etc.,  as  above  ex- 
plained. 2.  By  the-  tenant  purchasing  or  falling  heir  to  the 
fee,  for  in  either  case  the  lease  is  merged  in  the  inheritance. 

3.  By  taking  the  premises  for  public  uses  or  improvements. 

4.  When  the  premises  are  turned  into  a  house  of  ill-fame,  or 
used  for  other  unlawful  purpose. 

A  tenancy  from  year  to  year  can  only  be  terminated  on  the 
part  of  the  landlord  by  notice  to  quit,  in  writing,  signed  by 
the  person  who  has  the  right  to  immediate  possession  and 
not  his  agent.  It  requires  the  tenant  to  move  from  the 
premises  and  must  be  served  on  him  personally.  The  length 
of  time  of  notice  varies  in  the  States  from  six  months  to  one 
month.  Generally  if  a  tenant  rents  by  the  week  he  is  en- 
titled to  a  week's  notice;  if  by  the  month,  to  a  month's  notice; 
the  landlord  is  entitled  to  the  same  notice  from  the  tenant  if 
he  desires  to  quit. 

After  a  tenancy  has  terminated  if  the  tenant  remain  in  the 
landlord  should  proceed  by  regular  process  of  law  to  eject 
him.  A  new  lease  under  seal  to  third  party  will  facilitate 
matters. 

FORM  OF  LEASE. 

This  Indenture,  made  the  1st  day  of  March,  in  the  year 
of  our  Lord  1889,  witnesseth,  that  John  Winn,  of  Albany,  in 


FORM    OF    LEASE.  349 

Athens  County,  and  State  of  Ohio,  does  hereby  lease,  demise 
and  let  unto  George  L.  Pake,  of  Marshfield,  in  Athens 
County,  and  State  of  Ohio,  the  following  described  premises: 
{Describe  fully?)  To  hold  for  the  term  of  five  years  from  this 
ist  day  of  March,  A.  D.  1889,  the  said  lessee  yielding  and 
paying  therefor  the  rent  of  Two  Hundred  Dollars  per  annum, 
and  said  lessee  promises  to  pay  said  rent  in  {here  insert  times 
and  amount  of  payments),  and  to  quit  and  deliver  up  the  prem- 
ises to  the  lessor,  John  Winn,  or  attorney,  peaceably  and 
quietly,  at  the  end  of  the  term,  in  as  good  order  and  condition 
(reasonable  use  and  wearing  thereof,  fire  and  other  unavoid- 
able casualties  excepted)  as  the  same  are  now,  or  may  be  put 
in  by  said  lessor,  and  to  pay  rent  as  above  stated,  and  all  taxes 
and  duties  levied  thereon  during  the  said  term,  or  for  such 
further  time  as  the  lessee  may  occupy  the  premises,  and  not 
make  or  suffer  any  waste  thereof,  nor  lease,  nor  underlet,  nor 
permit  any  other  person  to  occupy  or  improve  the  same,  nor 
make,  nor  allow  to  be  made,  any  alteration  therein  unless  with 
the  consent  of  the  lessor,  in  writing,  and  that  the  said  lessor 
may  enter  said  premises  to  view  or  to  make  improvements, 
and  to  expel  lessee  for  breach  of  any  of  the  above  conditions. 
And  provided,  also,  that  in  case  the  premises,  or  any  part 
thereof,  are  destroyed  by  fire,  or  other  unavoidable  casualty,  so 
that  the  same  shall  be  unfit  for  use  and  habitation,  then  the 
rent  above  mentioned,  or  a  just  and  proportionate  part  thereof, 
shall  (according  to  the  nature  and  extent  of  the  injuries  sus- 
tained) be  suspended  or  abated  until  the  premises  shall  have 
been  put  in  proper  condition  for  use  and  habitation  by  the 
said  lessor,  or  these  presents  shall  be  determined  thereby,  and 
ended  at  the  election  of  the  said  lessee  or  his  legal  representa- 
tives. 


350  THE   LAW   OF   BUSINESS. 

In  Witness  Whereof,  the  said  parties  have  hereunto  in- 
terchangeably set  their  hands  and  seals  the  day  and  year  above 
written. 

Signed,  sealed  and  delivered  )  ~"  ^- 

in  the  presence  of  C  x  '  g' 

As  above  stated,  a  hold-over  tenant  can  be  gotten  out  by 
making  a  lease  under  seal  to  a  third  party.  The  third  party 
would  then  send  the  following  notice  to  the  tenant  unlawfully 
holding  over: 

NOTICE  TO  QUIT  FROM  A  NEW  LESSEE. 

Columbus,  O.,  Jan.  23,  1889. 
To  James  Peterson  : 

You  will  please  take  notice  that  John  Moreland,  the  owner 
of  the  premises  now  occupied  by  you,  viz  :  {here  insert  descrip- 
tion} has  executed  and  delivered  to  me  a  written  lease  of  said 
premises  for  the  term  of  one  year  from  the  date  hereof.  As  I 
desire  to  take  possession  of  the  premises  you  will  please  vacate 
them  without  delay. 

THOMAS  BENSON. 

NOTICE  TO  QUIT  FOR  NON-PAYMENT  OF  RENT. 

Springfield,  Mo.,  April  23,  1889. 
To  Elmer  Simpkinson: 

Your  rent  being  in  arrear,  yow  are  hereby  notified  to  quit 
and  deliver  up  in  {here  insert  time  allowed  by  law),  from  this 
date,  the  premises  now  held  by  you  as  my  tenant,  namely: 
{here  describe  premises).  Hereof  fail  not  or  I  shall  take  due 
course  of  law  to  eject  you  from  the  same. 

INKEEP  BYLAND. 


MORTGAGES.  35 1 

NOTICE  TO  TERMINATE  TENANCY  AT  WILL. 

Wheeling,  W.  Va.t  August  17,  1889. 
To  William  Jameson  : 

It  being  my  intention  to  terminate  your  tenancy,  you  are 
hereby  notified  to  quit  and  deliver  up,  at  the  expiration  of  that 
month  of  your  tenancy  which  shall  begin  next  after  this  date, 
the  premises  now  held  by  you  as  my  tenant,  viz  :  {here  describe 
premises.)  Hereof  fail  not,  or  I  shall  take  due  course  of  law 
to  eject  you  from  the  same. 

AVERY  TUDOR. 

MORTGAGES. 

A  mortgage  is  a  conveyance  of  an  estate  or  property  by 
way  of  pledge  for  the  security  of  debt,  said  conveyance  to  be- 
come void  upon  the  payment  of  the  debt. 

There  are  legal  and  equitable  mortgages. 

A  legal  mortgage  is  a  conveyance  of  property  intended  by 
the  parties  at  the  time  of  making  it  to  be  a  security  for  the 
performance  of  some  prescribed  act. 

An  equitable  mortgage  is  one  in  which  the  mortgagor  does 
not  actually  convey  the  property,  but  does  some  act  by  which 
he  manifests  his  determination  to  bind  the  same  as  a  security, 
as  depositing  with  the  lender  of  money  the  title  deeds  to  an 
estate;  but  they  must  be  deposited  as  a  present  bona  fide  se- 
curity. This  species  of  mortgage  is  seldom  used  in  modern 
times. 

The  grantor  of  a  mortgage  is  called  the  mortgagor;  the 
one  to  whom  the  mortgage  is  given  the  mortgagee.  Mort- 
gages usually  contain  a  power  of  sale  upon  breach  of  condi- 
tions, which  is  usually  the  failure  to  pay;  also  the  equity  of 
redemption  clause. 

Equity  of  redemption  is  the  right  which  the  mortgagor 
has  to  redeem  after  it  has  been  forfeited  at  law  by  the  non- 


352  THE    LAW   OF   BUSINESS. 

payment  when  due  of  the  money  secured  by  the  mortgage,  by 
paying  the  amount  of  debt,  interest  and  costs.  This  right  of 
redemption  accrues  to  administrators,  executors,  heirs,  assigns 
and  devisees  of  the  mortgagor,  but  the  debt  must  be  paid  in 
full  and  not  by  payments.  The  time  of  redemption  is  gener- 
ally limited  by  statute  to  three  years. 

Foreclosure  of  a  mortgage  is  an  equity  proceeding  by 
which  the  mortgagor's  equity  of  redemption  is  taken  away 
forever.  If  the  mortgagor  fails  to  pay,  the  mortgagee  may 
file  a  bill  calling  on  the  mortgagor  in  a  court  of  equity  to  re- 
deem his  estate  at  once  or  in  default  thereof  to  be  forever 
closed  or  barred  from  any  right  of  redemption.  In  a  few 
vStates  the  mortgagee  obtains  a  decree  for  the  sale  of  the  land 
under  the  direction  of  an  officer  of  the  court  and  the  pro- 
ceeds are  applied  to  the  discharge  of  incumbrances  in  the 
order  of  their  priority.  This  is  done  in  Indiana,  Kentucky, 
Maryland,  South  Carolina,  Tennessee  and  Virginia. 

Foreclosure  may  also  result  from  occupation  by  the  mort- 
gagee for  twenty  years,  or  a  period  of  time  necessary  by  the 
statutes  to  bar  a  writ  of  entry;  or  from  entry  by  the  mort- 
gagee and  holding  possession  for  a  term  of  years  fixed  by 
law;  or  by  sale  under  a  power  of  attorney  for  the  purpose, 
inserted  in  the  original  conveyance.  If  foreclosure  is  by  de- 
cree of  court  a  time  is  generally  allowed  for  redemption  be- 
fore the  decree  is  made  absolute.  As  to  form,  mortgages  are 
exactly  like  warranty  deeds,  except  that  immediately  follow- 
ing the  warranty  clause,  the  following  words  are  added,  called 
the  defeasance  clause: 

"Provided,  Nevertheless,  that  if  said ,  his  heirs, 

executors  or  administrators  shall  pay  unto  the  said  grantee, 

his  heirs,  executors,  administrators  or  assigns,  the  sum  of 

Dollars  in years  from  date  of  these  presents,  with 


interest  on  said  sum  at  the  rate  of per  cent,  per  annum, 


MORTGAGES.  353 

payable  semi-annually,  and  until  such  payment  shall  pay  all 
taxes  and  assessments  to  whomsoever  laid  or  assessed,  keep 
the  buildings  standing  on  the  land  aforesaid  insured  against 

fire  in  a  sum  not  less  than Dollars  for  the  benefit  of 

said  grantee,  his  executors,  administrators  or  assigns,  at  such 
insurance  office  as  they  shall  approve,  and  shall  not  commit 
or  suffer  any  strip  or  waste  of  the  granted  premises,  or  any 
breach  of  covenant  herein  contained,  then  this  deed,  as  also  a 
certain  promissory  note  having  even  date  herewith,  signed  by 

said  ,  and  whereby  the   said promises  to  pay 

said  grantee  the  said  sum  and  interest  at  the  times  aforesaid, 
shall  both  be  absolutely  void,  otherwise  shall  remain  in  full 
force." 

The  following  is  sometimes  added,  but  is  not  often  consid- 
ered necessary: 

"  And  provided  further,  that  until  default  of  payment  of  the 
said  sum  and  interest,  or  other  default  as  herein  provided,  the 
mortgagee  shall  have  no  right  to  enter  and  take  possession  of 
the  premises." 

Reference  is  made  above  to  a  power  of  sale  given  in  the 
original  conveyance.  If  it  is  desired  to  give  the  mortgagee 
this  power  it  is  done  by  the  following  words',  which  are  added 
immediately  after  the  defeasance  clause  : 

"But  upon  any  default  in  the  performance  of  the  foregoing 
conditions,  the  grantee, executors,  administrators,  or  as- 
signs may  sell  the  granted  premises  or  any  part  thereof,  to- 
gether with  all  the  improvements  that  may  be  thereon,  at  pub- 
lic auction  in  said ,  first  publishing  a  notice  of  the  time 

and  place  of  sale  once  each  week  for  three  successive  weeks 

in  some  one  newspaper  in  said ,  and  may  convey  the 

same  by  proper  deed  to  the  purchaser  absolutely  and  in  fee 
simple,  and  such  sale  shall  be  a  perpetual  bar  in  law  or  in 
equity  against  me  and  all  persons  claiming  under  me.  And 
23 


354  THE   UW   OF   BUSINESS. 

out  of  the  money  arising  from  such  sale  the  grantee  or  his 
representatives  shall  be  entitled  to  retain  such  sums  as  are  se- 
cured by  this  deed,  whether  the  same  be  then  due  or  not,  in- 
cluding all  expenses  incurred  or  sustained  by  reason  of  any 
default  on  the  part  of  the  grantor  or  his  representatives  to 
perform  all  the  conditions  of  the  deed,  rendering  any  surplus 
there  may  be  to  the  grantor  or  his  heirs  or  assigns;  and  it  is 
agreed  that  the  grantee  or  his  executors,  administrators,  or  as- 
signs, or  any  person  in  their  behalf,  may  purchase  at  any  such 
sale  made  as  aforesaid,  and  that  no  other  purchaser  shall  be 
answerable  for  the*  application  of  the  purchase  money,  and 
that,  until  default  in  the  performance  of  the  conditions  of  this 

deed, or heirs  and  assigns  may  hold  and  enjoy 

the  granted  premises  and  receive  all  the  rents  and  profits 
thereof." 

There  are  briefer  forms  of  mortgage  than  this,  but  none 
better  for  all  purposes. 

Mortgage  deeds  are  subject  to  the  same  requirements  in 
regard  to  signing,  sealing,  acknowledging  and  recording  as 
other  deeds. 

In  addition  to  the  mortgage  deed  a  note  is  given  for  the 
money  called  a  mortgage  note  which  reads  as  follows : 

Harrisburg,  Pa.,  July  30,  1889. 

"•For  value  received  I  promise  to  pay  to  John  S.  Barger  or 
order  One  Thousand  Dollars  ($1,000),  in  two  years  from  the 
date  hereof,  with  interest  at  six  (6)  per  cent,  per  annum.  This 
note  is  secured  by  a  mortgage  of  real  estate  of  even  date  here- 
with and  recorded  in  the  office  of  the ,  of county, 

State  of . 

(Signature) ." 

WILLS. 
In  order  that  a  will  may  be  valid  in  law,  the  person  who 
makes  it  must  be  of  sound  mind  and  rational  judgment.      He 


wills.  355 

must  know  what  he  is  doing  and  the  consequences  of  his  act. 
He  must  know  who  his  heirs  are,  his  liability  to  his  children 
and  the  probable  or  approximate  amount  of  his  property. 

Eccentricity  or  peculiarity  of  disposition  will  not  invalidate 
a  will.  Delusion,  when  it  affects  the  disposition  of  the  prop- 
erty, invalidates  the  whole  will,  but  if  the  delusion  is  as  to 
some  minor  or  unimportant  part  it  does  not  affect  the  will.  If 
a  contest  is  made  against  a  will  these  points  become  matters  of 
testimony  to  be  proved  or  disproved  by  the  contending  parties. 

A  ward  or  person  under  guardianship  can  not  make  a  will. 

One  of  the  most  frequent  grounds  for  contests  over  wills  is 
undue  influence,  as  this  more  frequently  than  anything  else  de- 
stroys the  free  agency  of  the  testator,  making  the  instrument 
the  will  of  another  and  not  that  of  the  testator.  A  wife's 
coaxing  her  husband  to  leave  his  property  to  her  would  not  be 
considered  by  the  courts  undue  influence;  but  if  the  testator 
is  constrained  by  force  directly  or  indirectly  exerted,  or  is 
nagged  and  pursued  to  death's  door,  into  making  a  will  con- 
trary to  his  wishes  and  desires,  and  this  state  of  facts  can  be 
shown,  the  will  would  be  declared  invalid. 

How  to  make  a  Will. — Wills  are  written  or  oral.  Oral  wills 
are  called  in  law  nuncupative.  A  will  may  be  written  with 
any  substance  used  for  writing,  ink,  pencil,  chalk,  etc.;  and  it 
may  be  written  on  any  thing,  paper,  parchment,  board,  slate, 
etc. 

The  form  of  words  used  in  a  will  is  not  important.  The 
intent  of  the  testator  must  be  clearly  expressed.  All  the 
terms  of  a  will  should  be  so  clear  that  no  mistake  in  their 
meaning  would  be  possible. 

A  will  may  be  certain  or  conditional  in  its  terms  of  devis- 
ing property. 

A  certain  will  makes  absolute  disposition  of  the  property. 

A  conditional  will  makes  the  disposition  of  the  property 


356  THE    LAW   OF   BUSINESS. 

depend  upon  some  future  event,  as  the  marriage  of  a  child,  or 
a  birth  or  death. 

A  will  must  be  signed  by  the  testator,  although  it  is  not 
necessary  that  the  name  be  placed  at  the  bottom  of  the 
writing;  it  may  be  written  any  place  on  the  paper  as  a  signa- 
ture. He  must  sign  in  the  presence  of  witnesses  who  must 
see  him  sign.  If  he  can  not  write  he  may  direct  another  to 
sign  for  him,  in  the  presence  and  hearing  of  the  witnesses. 
Or  he  may  make  his  mark,  even  if  he  can  write. 

Seals  are  now  not  generally  necessary,  although  a  few 
States  still  require  them. 

The  Witnesses  to  a  will  should  be  good;  i.  e.,  people  of  the 
best  character  that  can  be  obtained — people  not  only  of  good 
character  as  to  truth  but  of  good  judgment  and  business 
sense,  so  that  if  a  contest  should  be  made  they  would  testify 
intelligently  as  to  the  facts  of  signing,  etc.,  and  also  to  the 
extrinsic  circumstances  and  the  testator's  mental  and  physical 
condition  at  the  time.  As  many  witnesses  must  sign  as  the 
law  requires  (generally  two)  and  as  many  more  as  the  testator 
may  desire.  The  witnesses  must  sign  after  the  testator  and 
after  the  will  is  completed.  They  must  sign  their  own  names, 
or  make  their  mark,  in  the  presence  of  the  testator  and  of 
each  other. 

Revoking  or  Canceling  a  Will. — A  will  may  be  revoked: 

i .  By  burning,  tearing  or  destroying  it  with  intent  to  re- 
voke. This  must  be  done  by  the  testator  or  some  one  in  his 
presence  and  by  his  direction. 

2.  By  making  a  new  w7ill  which  is  signed  and  executed  in 
due  form. 

3.  By  writing  across  the  face  of  the  will  such  expressions  as 
"This  will  is  cancelled,"  or  "No  longer  valid,"  or  "This  will 
is  annulled."  This  must  be  done  by  the  testator  with  the 
intent  to  cancel  the  will. 


wills.  357 

4.  By  a  codicil  (see  definitions)  which  must  be  executed 
with  the  same  formality  as  the  original  will. 

5.  By  marriage,  after  making  a  will.  This  annuls  the  will 
in  most  States. 

If  a  child  can  prove  that  he  was  probably  forgotten  by  his 
father  in  his  will,  the  court  will  award  him  his  share;  but  if 
his  father  left  him  anything,  a  dollar,  it  would  bar  his  claim, 
for  that  would  be  proof  that  he  was  not  forgotten;  or  if  it 
can  be  proved  that  the  father  intended  to  disinherit  his  son 
then  his  claim  for  a  share  would  be  barred. 

Construction  of  a  Will. — The  wishes  of  a  testator  will  be 
carried  out  by  the  executor  if  possible  and  provided  they  do 
not  conflict  with  some  positive  rule  of  law,  and  are  not  in 
conflict  with  public  policy.  Conditions  in  restraint  of  mar- 
riage are  void,  though  a  condition  forbidding  marriage  with 
one  particular  person  would  be  valid,  as  there  would  be  many 
other  eligible  persons  whom  the  devisee  might  marry.  A 
minor  can  not  act  as  executor  and  if  appointed  the  court  will 
appoint  an  administrator  in  his  stead. 

Burden  of  Proof— The  burden  of  proof  as  to  the  com- 
petency of  the  testator  is  on  the  executor.  If  the  witnesses 
are  dead  and  there  are  no  suspicious  circumstances  oral  testi- 
mony will  be  admitted  to  prove  handwriting.  If  the  death  of 
the  testator  is  denied,  the  executor  must  prove  it..  If  the  man 
has  been  absent  seven  years  and  not  heard  from,  the  law  will 
infer  that  he  is  dead,  and  act  accordingly,  but  if  he  should  re- 
turn, all  proceedings  under  the  will  are  void.  If  a  will  is  con- 
tested the  parties  desiring  to  break  it  must  show  to  the  satis- 
faction of  the  court  that  the  will  was  extorted  or  made  under 
undue  influence. 

FORM  OF  A  WILL. 

The  following  form  is  simple  and  conforms  to  law: 

Be  it  remembered,  that  I ,  of ,  in  the  State 


358  THE    LAW    OF    BUSINESS. 

of ,  being  of  sound  mind  and  memory,  but  being  well 

aware  of  the  uncertainty  of  this  life,  do  make  this  my  last 
WILL  AND  TESTAMENT: 

After  the  payment  of  my  just  debts  and  funeral  expenses, 
I  bequeath  and  devise  as  follows:  (Jiere  state  just  what  you 
wish  to  be  done  or  omitted  and  use  plain,  simple  words  that 
have  but  one  constrtiction?) 

In  testimony  whereof,  I  hereunto  set  my  hand  and  in 
the  presence  of  three  witnesses  declare  this  to  be  my  last  will, 
this  1 8th  day  of  September,  A.  D.  1889. 

JOHN  C.  HILL. 

On  this  18th  day  of  September,  A.  D.  1889,  John  C.  Hill, 
of  Cincinnati,  Ohio,  signed  the  foregoing  instrument  in  our 
presence,  and  declared  it  to  be  his  last  will,  and  as  witness 
thereof,  we  three  do  now,  at  his  request,  in  his  presence  and 
in  the  presence  of  each  other,  hereto  subscribe  our  names. 

WILLIAMSON  D.  WATTS. 
M.  B.  BLACK. 
JOHN  D.  BANKS. 

STATE    LAWS   ON    DEEDS   AND   WILLS. 

The  laws  of  the  States  vary  somewhat  in  regard  to  the 
formalities  to  be  observed  in  drawing  deeds  and  wills.  The 
following  condensation  of  the  State  statutes  will  be  found  to 
cover  the  important  differences  : 

Alabama. — Deeds  must  be  witnessed.  If  not  witnessed 
they  must  be  acknowledged  and  recorded.  They  have  the 
force  of  sealed  instruments  if  they  so  purport  on  their  face. 

Wills  must  be  in  writing — two  witnesses  attesting  in  the 
presence  of  testator. 

Arkansas. — Deeds  must  be  executed  in  the  presence  of, 
or  acknowledged  before,  two  witnesses,  who  must  sign,   and 


STATE    LAWS   ON    DEEDS   AND   WILLS.  359 

must  be  acknowledged  before  some  qualified  officer,  and  be  re- 
corded. 

Wills. — Testator  must  be  twenty-one.  Will  must  be  ac- 
knowledged and  subscribed  by  testator  in  presence  of  two  wit- 
nesses who  must  sign  by  his  request. 

California. — Deeds  must  be  acknowledged,  or  proved, 
and  recorded. 

Wills  must  be  subscribed  by  testator,  or  some  person  in  his 
presence,  and  must  be  acknowledged,  etc.,  same  as  Arkansas. 

Colorado. — Deeds  must  be  acknowledged  and  recorded. 
Witnesses  not  necessary.     Scroll  answers  for  seal. 

Wills  must  be  attested  in  the  presence  of  testator  by  two 
witnesses,  and  signed  by  him  or  some  one  at  his  request. 

Connecticut. — Deeds  must  be  signed,  sealed  and  acknowl- 
edged, have  two  witnesses,  and  be  recorded  in  the  town  or 
city  where  the  land  is  located. 

Wills  must  be  signed  by  testator  and  attested  by  three  wit- 
nesses. These  witnesses  must  all  be  present  and  see  the  test- 
ator sign,  and  sign  in  each  other's  presence  at  the  same  time. 

Delaware. — Deeds;  one  witness;  acknowledged;  recorded. 

Wills  signed  by  testator ;  attested  by  two  witnesses. 

Florida. — Deeds  must  be  sealed  and  delivered  in  presence 
of  two  witnesses,  and  acknowledged  and  recorded  within  six 
months  after  execution.     A  scroll  answers  for  a  seal. 

Wills  must  be  attested  and  subscribed  by  three  witnesses, 
in  presence  of  testator,  and  must  be  signed  by  testator,  or  by 
some  one  authorized  by  him,  and  in  his  presence.  Nuncupa- 
tive wills  must  be  proved  by  three  witnesses. 

Georgia. — Deeds  must  be  signed,  sealed  and  acknowl- 
edged ;  attested  by  two  witnesses;  recorded  within  one  year. 
A  scroll  serves  for  a  seal. 

Wills.  Same  as  Florida,  except  nuncupative.  Persons 
fourteen  years  old  may  make  a  will. 


360  THE    LAW   OF    BUSINESS. 

Illinois. — Deeds  must  be  acknowledged  and  recorded. 
No  witnesses  necessary.     Scroll  for  seal. 

Wills  must  have  two  witnesses ;  signed  by  testator,  or  some 
one  in  his  presence.  Witnesses  must  see  testator  or  his  repre- 
sentative sign,  and  they  must  sign  in  his  presence. 

Indiana. — Deeds  must  be  signed,  acknowledged  and  re- 
corded.    No  seals  or  witnesses  are  necessary. 

Wills  must  be  attested  and  signed  by  two  witnesses,  and 
signed  by  testator,  or  some  one  in  his  presence  at  his  request. 

Iowa. — Deeds  same  as  Indiana. 

Wills  same  as  Indiana.  Nuncupative  wills  attested  by  two 
witnesses  convey  property  amounting  to  $300. 

Kansas. — Deeds  must  be  signed  by  the  grantor,  or  some 
one  authorized  by  him,  and  acknowledged  and  recorded.  No 
seals. 

Wills  must  be  .signed  by  the  testator,  or  some  one  in  his 
presence,  and  attested  by  two  witnesses ;  also  acknowledged  in 
the  presence  of  the  subscribing  witnesses  who  saw  him  sign. 

Kentucky. — Deeds  must  be  signed,  acknowledged  and 
recorded.     No  seals. 

Wills  must  be  signed  by  testator  or  some  one  for  him,  iu 
the  presence  of  two  witnesses  who  must  sign  at  one  and  the 
same  time. 

Louisiana. — Deeds  must  be  signed,  acknowledged  and 
attested  by  the  proper  officer  and  two  others,  and  recorded. 
No  seals. 

Wills. — there  are  three  kinds:  1.  Mystic  or  sealed.  2. 
Nuncupative.  3.  Holographic.  The  testator  must  sign  a 
mystic  will  and  acknowledge  it  before  a  notary  and  seven  wit- 
nesses, who  must  all  sign.  Nuncupative  wills  are  of  two 
kinds :  by  public  act  and  by  private  act.  A  will  by  public  act 
is  written  by  a  notary  at  testator's  dictation  and  acknowledged 
in  the  presence  of  not  less  than  three  witnesses.     A  will  by 


STATE    LAWS   ON    DEEDS   AND   WILLS.  36 1 

private  act  is  written  either  by  the  testator  himself  or  at  his 
dictation  in  the  presence  of  five  non-resident  witnesses.  He 
and  they  all  must  sign  it  and  acknowledge  it  before  a  notary. 
Holographic  wills  are  written  and  signed  by  the  testator  himself. 

Maine. — Deeds  must  be  signed,  sealed,  acknowledged  and 
recorded.     Scroll  answers  for  seal. 

Wills  must  be  signed  by  testator  or  some  one  in  his  pres- 
ence and  subscribed  by  three  disinterested  witnesses. 

Maryland. — Deeds  must  be  signed,  sealed,  acknowledged 
and  recorded  and  have  one  witness.     Scroll  for  seal. 

Wills  must  be  signed  by  testator  or  some  one  in  his  pres- 
ence at  his  request;  must  have  three  witnesses. 

Massachusetts. —Deeds  must  be  signed  and  sealed  by 
the  grantor  or  some  one  duly  authorized  by  him  and  acknowl- 
edged and  recorded.     No  witnesses.     Scroll  for  seal. 

Wills  must  be  signed  by  testator  or  some  one  in  his  pres- 
ence at  his  request,  and  attested  and  subscribed  by  three  wit- 
nesses in  the  presence  of  the  testator  and  of  each  other. 

Michigan. — Deeds  must  be  signed,  sealed,  acknowledged 
and  recorded,  and  have  two  witnesses. 

Wills  same  as  Massachusetts,  except  only  two  witnesses 
are  required. 

Minnesota. —  Deeds  same  as  Michigan.     Scroll  for  seal. 

Wills  same  as  Michigan. 

Mississippi.— Deeds  must  be  signed,  sealed,  acknowledged 
and  recorded.  One  witness.  If  there  be  no  acknowledgment 
two  witnesses  will  prove  the  deed.     Scroll  for  seal. 

Wills. — If  real  estate  is  devised  by  other  than  holographic 
will,  the  testament  must  be  attested  by  three  witnesses  in  the 
presence  of  testator ;  but  by  only  one  if  personal  property  is 
devised. 

Missouri. — Deeds  must  be  signed,  sealed,  acknowledged 
and  recorded.     No  witnesses  necessary.     Scroll  for  seal. 


362  THE   UW   OF   BUSINESS. 

Wills  must  be  attested  by  two  witnesses  and  signed  by  tes- 
tator or  some  one  in  his  presence. 

Nebraska. — Deeds  must  be  signed  by  grantor  and  one 
witness  in  presence  of  each  other,  and  be  acknowledged  and 
recorded.     No  seal  necessary. 

Wills  must  be  signed  by  testator,  or  some  one  in  his  pres- 
ence, at  his  request,  and  attested  and  subscribed  in  his  presence 
by  two  witnesses. 

Nevada. — Deeds  same  as  Missouri. 

Wills  must  be  signed  by  testator,  or  some  one  in  his  pres- 
ence, and  sealed ;  also  subscribed  and  attested  by  two  wit- 
nesses. 

New  Hampshire. — Deeds  must  be  signed,  sealed,  recorded 
and  attested  by  two  witnesses.     Scrolls  will  not  do  for  seals. 

Wills  must  be  signed  and  sealed  by  the  testator,  or  some 
one  in  his  presence,  and  be  attested  and  subscribed  by  three 
witn  esses. 

New  Jersey. — Deeds  same  as  Missouri. 

Wills  must  be  signed  by  the  testator,  or  some  one  in  his 
presence,  and  subscribed  and  attested  by  two  witnesses,  who 
must  have  the  testator's  acknowledgement  of  the  will,  and 
sign  in  his  and  each  other's  presence. 

New  York. — Deeds  must  be  signed,  sealed,  acknowledged 
and  recorded.  If  not  acknowledged  prior  to  delivery  one  wit- 
ness must  attest. 

Wills  must  be  signed  by  testator  and  two  witnesses,  in  the 
presence  of  each  other.  The  witnesses  must  add  the  address 
of  their  place  of  business. 

North  Carolina. — Deeds  must  be  signed,  sealed,  ac- 
knowledged by  one  witness  and  recorded  within  two  years. 
Scroll  for  seal. 

Wills  must  be  signed  by  testator,  or  some  one  in  his  pres- 
ence, and  by  two  disinterested  witnesses.     Holographic  wills 


.  STATE    LAWS   ON    DEEDS   AND   WILLS.  363 

are  permitted  if  testator's  signature  is  proved  by  three  wit- 
nesses. 

Ohio. —Deeds  must  be  signed,  sealed,  acknowledged  and 
recorded.     Two  witnesses.     Scroll  for  seal. 

Wills  must  be  signed  by  testator,  or  some  one  in  his  pres- 
ence, and  by  his  direction  and  in  presence  of  two  witnesses 
and  attested  by  them. 

Oregon. — Deeds  same  as  Ohio. 

Wills  must  be  signed  by  testator,  or  some  one  in  his  pres- 
ence and  by  two  witnesses-  at  the  same  time. 

Pennsylvania. — Deeds  same  as  Ohio,  excepting  only  one 
witness  is  necessary. 

Wills  same  as  Oregon. 

Rhode  Island. — Deeds  must  be  signed,  sealed,  acknowl- 
edged, recorded  and  delivered.  Scrolls  will  not  answer  for 
seals. 

Wills  must  be  signed  by  the  testator,  or  some  one  for  him, 
and  by  two  witnesses  in  the  testator's  presence. 

South  Carolina. — Deeds  same  as  Ohio. 

Wills  must  be  signed  by  the  testator  and  three  witnesses  in 
his  presence. 

Tennessee. — Deeds  must  be  signed  and  recorded,  and  ac- 
knowledged by  grantor  or  two  witnesses.     No  seals. 

Wills  must  be  signed  by  testator,  or  some  one  in  his  pres- 
ence, and  be  signed  and  attested  by  two  witnesses.  Holo- 
graphic wills  are  allowed  if  three  witnesses  prove  testator's 
signature. 

Texas. — Deeds  must  be  signed,  sealed  and  recorded.  Also 
acknowledged  or  proved  by  two  witnesses.     Scroll  for  seal. 

Wills  must  be  signed  by  testator,  or  some  one  authorized 
by  him,  and  attested  by  two  witnesses,  unless  holographic. 

Vermont. — Deeds  must  be  signed  and  sealed  in  presence 
of  two  witnesses;  also  acknowledged  and  recorded  in  the  city 


364  THE    LAW   OF   BUSINESS. 

or  town  where  the  property  is  located.  Scroll  will  not  answer 
for  seal. 

Wills  must  be  signed  by  testator  or  some  one  authorized 
by  him,  and  by  three  witnesses  in  testator's  presence. 

Virginia. — Deeds  must  be  signed  and  sealed,  and  recorded 
within  sixty  days.     Scroll  for  seal. 

Wills  must  be  signed  by  testator  or  some  one  authorized 
by  him,  and  have  two  witnesses  who  sign  in  presence  of  tes- 
tator and  of  each  other,  unless  the  will  be  holographic. 

West  Virginia. — Deeds  same  as  Ohio. 

Wills  must  be  signed  by  testator  and  two  witnesses  in 
presence  of  each  other.  Holographic  wills  must  be  signed  by 
testator  or  some  one  for  him. 

Wisconsin. — Deeds  same  as  Ohio. 

Wills  must  be  signed  by  testator  or  some  one  in  his  pres- 
ence and  be  attested  and  signed  by  two  witnesses. 


CHAPTER  III. 

CONTRACTS. 

A  CONTRACT  is  an  agreement  between  competent  per- 
sons, upon  a  sufficient  consideration,  to  do  or  not  to 
do  a  particular  thing. 

A  simple  or  parol  contract  is  a  contract  not  under 
seal;  it  may  or  may  not  be  in  writing. 

Specialties  are  contracts  under  seal,  as  deeds,  bonds,  etc. 

A  verbal  contract  is  a  simple  contract  in  words,  either 
spoken  or  written. 

An  oral  contract  is  a  simple  contract  spoken,  or  by  the 
mouth. 

An  express  contract  is  one  in  which  the  terms  of  the  agree- 
ment are  openly  stated  and  understood  at  the  time. 

An  implied  contract  is  one  some  or  all  of  whose  terms  are 
presumed  by  the  law,  from  considerations  of  reason  and  jus- 
tice, to  exist.  As  if  I  engage  a  man  to  do  a  certain  service  for 
me  saying  nothing  about  pay,  the  law  will  imply  that  I  con- 
tracted to  pay  the  value  of  the  work. 

The  essential  qualities  of  a  contract  are:  i.  Assent  to  all 
its  terms  by  the  parties  thereto.  2.  A  good  and  valid  consid- 
eration, which  must  be  proved  except  in  bills  and  notes  and 
other  written  contracts  that  bear  upon  their  face  prima  facie 
evidence  of  consideration,  but  this  is  open  to  contradiction  by 
parol  testimony.  3.  The  thing  contracted  to  be  done  must  be 
lawful.  Fraudulent,  immoral  and  forbidden  contracts  are 
void.  4.  The  contract  must  not  be  against  public  policy  or 
the  statutes.  5.  As  a  general  rule  the  contract  must  be  bind- 
ing on  both  parties,  although  to  this  there  is  a  seeming  ex- 

365 


366  THE   LAW   OF    BUSINESS. 

ception  in  the  case  of  an  infant,  who  may  sue  on  his  contract 
though  he  can  not  be  sued.  An  infant,  however,  is  not  con- 
sidered a  competent  party  to  contract,  and  an  agreement  with 
one  would  scarcely  fall  within  the  strict  definition  of  a  con- 
tract. 

Assent. — What  is  meant  by  assent  of  the  parties  is  their 
free,  mutual  and  reciprocal  concurrence  in  and  approval  of 
the  terms  of  the  contract.  Assent  may  be  express  or  implied, 
the  first  being  openly  declared,  the  latter  presumed  by  law. 
It  may  be  oral,  written  or  symbolical.  In  auction  sales  assent 
is  almost  entirely  by  signs,  a  nod  from  the  bidder  and  a  blow 
from  the  auctioneer's  hammer  showing  proposition  and  ac- 
ceptance— a  completed  contract.  Assent  must  be  to  the  same 
thing  in  the  same  sense;  it  must  comprehend  the  wdiole  of  the 
proposition,  and  be  exactly  equal  to  it  in  extent  and  pro- 
visions and  must  not  qualify  them  by  any  new  matter. 

Ordinarily  and  unless  otherwise  stated  the  acceptance 
must  be  made  immediately  upon  hearing  the  proposition,  but 
sometimes  a  definite  time  is  given  within  which  to  accept. 
Any  proposition  may  be  withdrawn  at  any  time  before  ac- 
ceptance. Assent  must  be  free,  i.  e.,  not  obtained  by  violence 
or  intimidation.  Duress  to  any  other  person  will  not  void  a 
contract,  as  to  a  son  to  secure  the  father's  assent;  there  is  one 
exception  to  this  where  a  man's  wife  is  held  in  duress  to  se- 
cure his  assent  to  a  contract;  here  the  law  makes  man  and 
wife  one  and  any  obligation  he  is  forced  into  in  order  to  re- 
lease his  wife  is  void. 

Assent  must  be  obtained  without  fraud.  Fraud  vitiates 
everything.  Obtaining  assent  by  correspondence  is  some- 
times attended  by  some  very  nice  points  of  law.  If  I  write 
you  that  I  will  sell  you  a  certain  horse  for  $300,  you  are  en- 
titled to  a  reasonable  time  for  reply,  although  I  can  withdraw 
the  proposition  at  any  time.     But  the  withdrawal  takes  place 


CONTRACTS.  367 

when  you  receive  the  notice,  not  when  I  mail  it,  and  if  you 
have  mailed  your  acceptance  of  the  offer  before  my  withdrawal 
is  received  I  will  be  held  to  the  proposition — it  is  a  contract. 

Consideration. — By  consideration  we  mean  the  motive  or 
inducement  for  making  a  contract.  Our  definition  of  a  con- 
tract, which  is  Blackstone's  definition,  and  which  was  also 
adopted  by  the  celebrated  jurist  and  author,  Chancellor  Kent, 
includes  "a  sufficient  consideration"  as  a  necessary  part  of  the 
definition  of  a  legal  contract.  It  is  argued  by  many  good 
legal  minds,  including  Mr.  Stephen,  who  has  written  an  ex- 
haustive and  standard  work  on  contracts,  that  consideration  is 
not  necessary  to  the  idea  of  a  contract.  While  not  necessary 
to  the  idea  of  a  contract,  it  is  admitted  by  all  that  it  is  neces- 
sary to  its  enforcement,  and  this  is  the  standpoint  of  definition, 
making  it  include  the  elements  necessary  to  give  the  instru- 
ment legal  validity.  Mr.  Stephen  admits  that  consideration  is 
necessary  to  the  validity  of  a  parol  contract,  and  Kent  says 
that  in  specialties,  in  which  no  consideration  is  in  fact  re- 
quired, one  is  always  presumed  by  law,  the  form  of  the  instru- 
ment being  held  to  impart  a  consideration.  Yet  we  know  that 
a  contract  without  consideration  is  called  a  nudum  pactum  (a 
nude  pact)  or  naked  contract,  still  it  is  a  pactum,  and  this 
would  seem  to  imply  that  a  consideration  is  not  necessary. 
But  without  discussing  further  the  sufficiency  of  a  definition 
it  will  be  enough  to  impress  the  point  that  all  contracts  should 
be  supported  by  some  consideration  to  render  them  valid  and 
enforceable.  The  consideration  is  the  very  life  of  a  parol  con- 
tract. 

The  most  important  divisions  of  consideration  are  good 
and  valuable. 

A  good  consideration  is  one  of  blood,  natural  love  and 
affection,  and  the  like.  It  is  used  only  in  deeds  and  is  good 
there  only  between  the  parties;  it  will  not  be  sufficient  against 
third  parties  in  interest. 


368  THE    LAW   OF   BUSINESS. 

A  valuable  consideration  is  one  which  confers  some  benefit 
upon  the  party  by  whom  the  promise  is  made ;  or  some  detri- 
ment sustained  by  the  party  in  whose  favor  the  promise  is 
made.  A  valuable  consideration  is  usually  pecuniary  or  in 
some  way  convertible  into  money.  A  very  slight  considera- 
tion, provided  it  is  valuable,  will  support  a  contract.  A  valu- 
able consideration  is  the  only  kind  that  is  good  against  subse- 
quent purchasers  and  attaching  creditors. 

Among  the  common  valuable  considerations  to  contracts, 
in  addition  to  money,  goods  or  chattels  and  labor  are  the  fol- 
lowing :  the  waiver  of  any  legal  or  equitable  right,  at  the  re- 
quest of  another ;  forbearance  for  a  certain  time  to  institute 
suit  on  a  valid  claim ;  the  prevention  of  litigation ;  marriage, 
though  not  convertible  into  money,  is  now  settled  to  be  a  val- 
uable consideration.  Illegal  considerations  can  not  be  the 
foundation  for  a  contract.  Violations  of  decency  and  morality 
are  in  contravention  of  common  law  and  public  policy  and 
contracts  for  these  purposes  will  not  be  supported,  as  to  com- 
mit or  conceal  a  crime ;  or  a  contract*  for  future  illicit  inter- 
course. 

A  contract  based  upon  a  natural  or  physical  impossible 
consideration  is  void. 

A  consideration  which  appears  valuable  but  turns  out  a 
nullity  will  not  support  a  contract,  as  an  agreement  to  do  what 
one  is  already  obliged  to  do. 

Lawful  object. — The  thing  contracted  to  be  done  must  be 
lawful  or  the  contract  can  not  be  enforced.  It  would  be  con- 
trary to  public  policy,  in  fact,  it  would  be  encouraging  wrong 
doing  for  the  courts  to  come  to  the  relief  of  parties  attempt- 
ing to  violate  the  law.  All  fraudulent,  immoral  and  forbidden 
contracts  are  void;  contracts  against  public  policy  or  the 
statutes  are  void,  even  if  the  statute  does  not  prohibit  the  act 
but  only  attaches  a  penalty. 


CONTRACTS.  369 

Parties. — An  idiot  can  not  make  a  valid  contract,  neither 
an  insane  person.  An  infant,  or  a  person  under  the  age  of 
twenty-one,  can  not  make  a  contract  that  will  bind  him,  ex- 
cept it  be  for  necessaries  in  which  case  he  will  be  held  and 
have  to  pay.  And  if  he  be  married  and  order  necessaries  for 
his  wife  and  family  he  will  be  held.  The  court  considers  the 
station  in  life  and  means  of  the  infant  in  determining  what 
are  necessaries.  A  necessity  for  one  might  be  a  luxury  for 
another.  The  son  of  a  deceased  millionaire  would  not  be  re- 
quired to  subsist  on  the  same  allowance  that  would  be  suf- 
ficient and  necessary  for  a  boy  of  poor  parentage  who  must 
economize  that  he  may  have  anything  left  at  majority.  Food, 
proper  clothing,  shelter,  medical  attendance  and  instruction, 
are  necessaries,  but  strangers  should  inquire  whether  his  law- 
ful guardian  is  not  able  or  willing  to  supply  the  infant  with 
these  necessaries  before  they  do  so,  for  if  he  is,  then  others 
should  not  unless  they  want  to  do  it  for  nothing.  If  you  fur- 
nish an  infant  necessary  supplies  do  not  take  a  note  for  it — 
the  note  is  worthless  if  he  resists  it,"  while  your  claim  for 
goods  sold,  if  necessaries,  will  be  allowed.  The  rule  of  neces- 
saries holds  good  also  in  case  of  lunatics  and  idiots.  A  con- 
tract made  by  a  lunatic  in  a  lucid  interval  is  good.  This  rule 
of  prohibiting  infants  from  contracting  is  intended  for  their 
benefit.  The  time  when  an  infant  comes  of  age  is  on  the  last 
day  of  his  twenty-first  year.  That  is  if  he  were  born  July  4 
he  would  come  of  age  July  3  and  would  be  held  just  as  re- 
sponsible for  all  acts  done  on  that  day,  as  signing  a  note, 
making  a  will,  etc.  as  if  he  were  fifty  years  old.  He  can  not 
plead  the  Baby  Act  for  any  thing  done  on  that  day,  he  is  then 
a  legal  man. 

An  infant,  while  unable  to  contract  is  still  held  liable  for 
all  torts  that  he  may  commit,  such  as  slander,  trespass,  assault, 
etc.  If  he  falsely  represent  himself  to  be  of  age  and  by  such 
24 


370  THE   LAW   OF    BUSINESS. 

representation  procure  goods  the  party  from  whom  he  pro- 
cured them  can  take  them  away  and  in  some  States  prosecute 
him  for  obtaining  goods  under  false  pretenses. 

Married  women,  by  the  common  law,  were  almost  entirely 
disabled  to  contract,  their  personal  existence  being  merged  in 
that  of  their  husbands.  Contracts  made  by  them  before  mar- 
riage made  be  enforced  by  their  husbands  after  marriage  but 
not  by  themselves.  The  result  is  that  the  contract  of  a  feme 
covert  is  generally  void  unless  she  act  as  the  agent  of  her  hus- 
band, in  which  case  it  is  her  husband's  contract  and  not  hers. 
Nearly  all  the  States  have  special  statutes  on  the  rights,  duties, 
privileges  and  obligations  of  married  women,  many  of  them 
very  much  enlarging  their  powers  in  this  respect,  and  for  a 
full  knowledge  of  this  subject  for  any  State  the  statutes  of 
that  State  will  have  to  be  searched.  Slaves  can  not  make 
contracts  with  their  masters  or  with  any  one  else  without  the 
master's  consent,  but  as  there  is  no  slavery  in  the  United  States 
at  the  present  day  this  subject  need  not  be  further  discussed. 

A  contract  made  by  a  drunken  man  is  voidable  unless  it  be 

for  necessaries  for  himself  and  family.     And  if  it  be  not  for 

necessaries  and  the  man  retain  and  use  the  thing  bought  after 

becoming  sober  he  will  be  held  to  affirm  the  contract  and  have 

to  pay. 

WHAT  CONTRACTS  MUST  BE  IN  WRITING. 

Statute  of  Frauds. — The  law  requires  that  certain  contracts 
to  be  binding  on  the  parties  shall  be  in  writing.  Over  two 
hundred  years  ago  this  necessity  was  recognized  and  in  the 
year  167.7,  in  the  reign  of  Charles  II.,  the  celebrated  "Statute 
of  Frauds"  was  enacted.  The  object  of  the  statute  is  well  set 
forth  in  its  title,  "for  the  prevention  of  many  fraudulent 
practices  which  are  commonly  endeavored  to  be  upheld  by 
perjury  and  subornation  of  perjury,"  by  requiring  that  certain 
contracts  shall  be  in  writing.     The  statute  of  frauds  was  an 


STATUTE    OF    FRAUDS.  37 1 

elaborate  affair.  It  covered  six  distinct  heads  or  subjects  and 
was  comprised  in  twenty-seven  chapters.  As  parts  of  this 
statute  have  been  re-enacted  by  nearly  every  State  in  the 
Union  and  are  now  law  which  every  one  ought  to  be  familiar 
with  we  give  the  principal  features.  The  great  change  which 
this  law  has  introduced  was  in  parol  contracts.  Up  to  that 
time  the  law  recognized  only  two  great  classes  of  contracts, 
those  by  deed  and  those  by  parol,  or  sealed  and  unsealed. 
This  statute  drew  a  distinction  between  written  parol  and  oral 
parol,  rendering  a  writing  necessary  in  some  cases,  though  not 
under  seal.  The  following  must  be  in  writing,  otherwise  the 
law  will  not  allow  an  action  to  enforce  them:  i.  Any  special 
promise  by  an  executor  or  administrator  to  answer  damages 
out  of  his  own  estate.  2.  Any  special  promise  of  any  person 
to  answer  for  the  debt,  default  or  miscarriage  of  another.  3. 
Any  agreement  made  upon  consideration  of  marriage.  4.  Any 
contract  for  the  sale  of  lands,  tenements  and  hereditaments, 
or  any  interest  in  or  concerning  them.  5.  Any  agreement 
not  to  be  performed  within  the  space  of  one  year  from  the 
making  thereof.  6.  Any  agreement  for  the  sale  of  any  goods, 
wares  and  merchandise,  for  the  amount  of  ten  pounds  sterling 
or  upwards,  unless  part  of  the  purchase  price  is  paid  or  part 
of  the  goods  delivered. 

These  are  the  most  important  features  of  the  statute  and  as 
they  are  all  very  important  law7  at  the  present  time  perhaps  a 
few  words  of  explanation  would  be  well  received. 

1.  Executors  and  administrators  in  settling  up  estates  are 
liable  to  suffer  damage  and  loss,  and  the  attempt  was  fre- 
quently made  to  make  them  answer  for  such  loss  out  of  their 
own  private  estates,  and  in  attempting  to  do  this  it  was  easy  to 
affirm  that  the  executor  had  said  that  he  would  stand  good  for 
any  damage  the  estate  might  sustain  under  his  management. 
The  law  says  that  he  can  not  be  held  on  that  kind  of  a 


372  THE    LAW   OF    BUSINESS. 

promise;  if  the  heirs  expect  to  hold  him  personally  liable  his 
promise  must  be  put  in  writing. 

2.  This  provision  relating  to  standing  good  for  another 
man's  debts  is  very  important  and  little  understood.  It  means 
simply  that  if  a  shop  keeper  proposes  to  hold  me  liable  on  a 
promise  to  pay  your  debt  if  you  do  not  he  must  get  that 
promise  in  writing.  To  illustrate :  Jones  and  Brown  go  into 
Smith's  store;  Jones  wants  a  coat  and  Brown  says,  "He's  all 
right;  if  he  don't  pay  you  1  will."  Smith  sells  Jones  the  coat 
and  charges  him  with  it.  Jones  fails  to  pay  and  Smith  at- 
tempts to  collect  from  Brown.  He  can  not;  that  promise  to 
be  good  in  law  must  be  in  writing.  If  Brown  had  said  to 
Smith,  "Give  Jones  a  coat  and  charge  it  to  me,"  or  "Give 
Jones  a  coat  and  I  will  settle  the  bill,"  then  he  would  be  liable 
on  his  naked  promise  for  it  is  a  contract  between  Brown  and 
Smith  and  Brown  is  charged  on  Smith's  books.  Merchants 
should  be  very  careful  in  this  regard  and  have  a  distinct  un- 
derstanding who  is  to  be  charged  on  the  books,  and  if  one 
proposes  simply  to  stand  good  for  another  or  pay  if  he  don't, 
insist  on  having  a  written  memorandum  of  the  agreement. 

3.  Any  agreement  upon  consideration  of  marriage.  This 
does  not  mean  an  agreement  to  marry  at  some  future  time,  nor 
the  contract  of  marriage  itself,  but  an  agreement  to  do  some- 
thing else  provided  a  marriage  take  place.  A  promise  to  give 
to  a  woman,  or  settle  upon  her,  a  specific  sum  upon  her  mar- 
riage is  valid  if  in  writing.  But  the  promise  must  be  to  the 
other  party — to  the  man.  A  letter  will  suffice  for  the  writing, 
but  a  letter  written  to  the  daughter  by  her  father  making  the 
promise,  which  she  did  not  show  to  the  intended  husband  or 
make  known  to  him  until  after  marriage,  is  not  a  promise 
within  the  meaning  of  the  statute.  It  must  be  a  promise  to 
one  party  in  consideration  that  he  or  she  will  marry  a  certain 
other  party.  .  This  clause  of  the  Statute  of  Frauds  has  only 


CONTRACTS.  xi% 

been  adopted  by  a  few  of  the  States  and  so  has  no  general  ap- 
plication in  this  country. 

4.  Any  contract  for  the  sale  of  lands,  etc.  This  does  not 
refer  to  the  deed  of  conveyance  or  the  actual  sale,  but  to  the 
preliminary  contract  to  sell.  The  words  are  obviously  in- 
tended to  have  a  wide  operation,  as  the  clause,  "or  any  interest 
in  or  concerning  them,"  is  very  far  reaching  in  its  application. 
The  courts  have  construed  the  meaning,  however,  in  most  un- 
certain cases.  The  question  might  arise  whether  a  contract 
for  the  sale  of  growing  crops  would  be  a  contract  or  sale  of 
"any  interest  concerning  lands."  This  seems  to  depend  upon 
the  intention  of  the  parties.  If  the  grain  be  reaped  and  in 
barns  or  stacks  it  is  evidently  severed  and  a  mere  chattel.  If 
it  be  growing  and  the  sale  contemplates  a  severance  when 
grown  and  a  delivery  of  it  then,  it  is  in  the  estimation  of  the 
parties  a  mere  chattel.  As  a  general  rule  it  may  be  stated  that 
if  the  parties  consider  the  land  merely  as  a  place  of  deposit  or 
storing  for  the  vegetable  productions  they  are  so  far  discon- 
nected from  it  that  they  may  be  sold  as  chattels,  and  are  not 
within  the  statute.  If  a  contract  provide  for  the  sale  of  land 
and  the  growing  crops,  they  go  as  part  of  the  land  and  come 
within  the  statute.  An  agreement  to  release  dower  must  be 
in  writing.  An  agreement  to  sell  growing  trees  with  the  priv- 
ilege to  enter  and  take  them  away  is  a  contract  for  sale  of  an 
interest  in  lands  and  must  be  in  writing.  This  section  is  in 
general  force  in  the  States  of  the  Union. 

5.  The  rule  of  law  for  determining  whether  a  contract  is 
to  be  performed  within  the  space  of  one  year  from  the  making 
is  this:  If,  when  made,  it  was  in  reality  capable  of  a  full  and 
bona  fide  performance  within  the  year,  without  the  interven- 
tion of  extraordinary  circumstances,  then  it  is  to  be  considered 
as  not  within  the  statute.  The  understanding  or  intention  of 
the  parties  does  not  control  the  decision.     They  may  contera- 


374  THE   LAW   OF    BUSINESS. 

plate  a  much  longer  continuance  of  the  contract,  or  a  suspen- 
sion of  it  and  a  revival  at  a  future  time,  but  the  above  rule 
governs  the  construction.  This  clause  relates  more  frequently 
to  contracts  for  labor  and  services  than  anything  else  and  is  in 
force  in  perhaps  all  the  States  of  the  Union. 

6.  Contract  for  the  sale  of  goods  must  be  in  writing  signed 
by  the  parties  or  their  agents.  The  payment  of  earnest  money 
or  the  acceptance  and  receipt  of  a  part  of  the  goods  takes  it 
out  of  the  statute  and  renders  a  written  memorandum  unneces- 
sary. The  question  arises  what  constitutes  acceptance  and  re- 
ceipt of  a  part  of  the  goods,  for  this  statute  requires  both  de- 
livery and  acceptance,  and  therein  differs  from  the  old  com- 
mon law  principle  which  only  required  delivery  of  the  article 
in  kind  and  quality  ordered.  If  A  order  orally  B  to  send  him 
one  thousand  bushels  of  wheat,  naming  the  quality  and  price 
to  be  paid;  B  sends  the  wheat  as  ordered.  At  common  law 
the  sale  is  complete  and  all  A  can  do  is  to  object  to  the  quality 
or  kind.  But  under  this  statute  he  can  immediately  return 
the  wheat  to  B  and  refuse  to  pay  for  it  even  if  it  was  exactly 
the  kind  and  quality  he  ordered,  as  not  only  delivery  but  ac- 
ceptance is  required  to  complete  the  sale.  If  A  accept  the 
wheat  then  he  must  pay  and  can  not  after  that  resist  because 
the  order  was  not  in  writing.  To  avoid  cases  of  this  kind 
merchants  should  insist  on  having  orders  for  goods  in  writing. 
This  clause  has  been  adopted  in  nearly  all  the  States  and 
where  it  has  not  the  common  law  rule  holds  good.  The  mini- 
mum limit,  "ten  pounds  sterling,"  as  written  in  the  original 
statute,  is  usually  made  fifty  dollars  in  this  country  although 
some  States  make  the  amount  less.  The  subject  of  "  De- 
livery," which  has  an  important  bearing  on  this  question,  will 
be  found  discussed  further  on  under  that  head. 

IMPLIED  PROMISES  OR  CONTRACTS. 

Implied  contracts  are  such  as  reason  and  justice  dictate, 


CONSTRUCTION. 


375 


and  which  the  law  presumes  ever}-  man  undertakes  to  per- 
form. If  A  employ  a  person  to  do  work  for  him  without 
naming  a  price  the  law  implies  that  he  contracted  to  pay  the 
real  value  of  the  services.  Parsons  says  that  "  these  contracts 
form  the  web  and  woof  of  actual  life."  Closely  allied  to  these 
are  certain  engagements  or  promises  which  the  law  will 
always  imply  and  which  are  seldom  expressed. 

If  a  man  undertake  a  trust  or  office  the  law  presumes  a 
promise  on  his  part  to  perform  his  undertaking  with  integrity, 
diligence  and  skill,  and  the  want  of  any  of  these  lays  him 
liable  to  his  employer  for  damages. 

When  an  agent  contracts  in  the  name  of  his  principal  he 
implies  that  he  has  the  authority  of  the  principal. 

The  law  requires  a  man  to  pay  taxes  and  presumes  his 
promise  to  do  so,  and  if  he  fails  a  suit  is  brought  to  collect 
the  same.  Towns  and  cities  are  obliged  to  take  care  of  their 
indigent  poor. 

Metcalf  says  truly  that  the  only  ground  upon  which  an 
action  can  be  maintained  on  an  implied  contract  is  that  of 
justice,  duty  and  moral  obligation.  A  man  is  bound  to  sup- 
port his  wife  and  children  and  if  he  drive  them  from  home 
and  then  publish  a  notice  that  he  will  not  be  responsible  for 
debts  contracted  by  them,  it  will  not  avail,  he  will  be  com- 
pelled to  pay  bills  they  may  contract  for  the  necessaries  of 
life.  But  if  they  left  his  house  against  his  wishes,  it  would 
be  different. 

If  I  know  a  man  is  rendering  me  service  and  I  permit  him 
to  continue  I  am  bound  to  pay  him  the  fair  value  for  his 
work,  but  if  I  know  nothing  of  it  and  don't  see  him  he  can 
not  collect  wages  even  though  his  services  benefit  me.  If  a 
plasterer  is  plastering  your  house  and  before  he  is  done  it 
burn  down  you  will  have  to  pay  him  for  work  done. 

Construction.—"  The  intention  of  the  parties  is  the  pole- 


376  THE    LAW   OF   BUSINESS. 

star  of  construction,"  says  Bouvier.  But  the  intention  must 
be  found  expressed  in  the  contract,  and  be  consistent  with  the 
rules  of  law.  If  the  contract  is  so  defective  that  the  meaning 
of  the  parties  can  not  be  determined,  the  court  will  not  make 
a  new  contract  for  them,  nor  will  it  force  words  out  of  their 
real  signification.  The  situation  of  the  parties  and  the  subject- 
matter  will  be  fully  considered  in  arriving  at  the  sense  of  the 
language  used. 

If  the  contract  relates  to  a  trade  or  profession  the  words 
peculiar  to  that  trade  will  be  given  their  technical  meaning. 
Words  that  are  manifestly  inconsistent  with  the  declared  pur- 
pose or  intent  of  the  contract  will  be  rejected,  and  words 
omitted  so  as  to  defeat  the  effect  of  the  contract,  will  be  sup- 
plied by  inference  from  the  context.  If  words  have  two  mean- 
ings, that  will  be  given  them  which  gives  effect  to  the  design 
of  the  parties.  The  whole  contract  is  to  be  considered  with 
relation  to  the  meaning  of  any  of  its  parts.  All  parts  will  be 
construed,  if  possible,  so  as  to  have  effect. 

Lex  Loci. — The  law  of  the  place  where  a  contract  is  made, 
a  right  is  acquired,  or  an  act  done  relating  to  personal  prop- 
erty governs  it.  This  rule  applies  to  determining  the  validity, 
or  invalidity,  of  the  contract,  also  the  rights  of  parties  under 
it  in  all  matters  pertaining  to  the  modes  of  execution  and  au- 
thentication of  the  form  or  instrument  of  contract ;  also  to  the 
interpretation  of  the  contract,  the  meaning  of  words  and  use 
of  language  employed  in  it,  the  legal  duties  and  obligations 
imposed  by  it  and  rights  acquired  under  it.  If  the  parties, 
however,  at  the  time  of  making  the  contract  had  the  laws  of 
another  Kingdom  or  State  in  view,  this  general  rule  of  lex 
loci  stated  does  not  apply,  neither  if  the  lex  loci  is  itself  unjust 
or  contra  bonos  mores  (against  good  morals). 

The  capacity,  or  incapacity,  of  the  parties  to  the  contract 
as  effected  by  the  questions  of  minority,  coverture,  guardian- 


SALE.  377 

ship,  slavery  and  other  personal  disabilities,  is  to  be  decided  by 
the  law  of  the  place  of  making  the  contract. 

A  discharge  from  the  performance  of  a  contract  under  the 
lex  loci  is  a  discharge  everywhere. 

A  contract  of  marriage,  if  valid  where  contracted  is  valid 
everywhere,  unless  it  is  repugnant  to  the  settled  policy  and 
laws  of  the  country  where  sought  to  be  enforced ;  the  recog- 
nized exceptions  in  the  United  States  being  incestuous  and 
polygamous  marriages,  and  the  like. 

The  law  that  governs  the  conveyances  of  real  estate  is  the 
lex  rei  sitae  (law  of  the  place  of  location  of  the  thing).  It  is 
a  universal  rule  of  law  that  any  title  or  interest  in  land,  or  any 
form  of  realty,  can  only  be  acquired  or  lost  conformably  to  the 
law  of  the  place  where  the  realty  is  situated.  This  rule  holds 
good  as  to  the  capacity  of  the  parties  to  transfer  as  affected  by 
questions  of  minority  or  coverture;  or  by  relations  of  parent 
and  child,  guardian  and  ward ;  also  executors  and  administrat- 
ors. A  man  residing  in  Ohio,  and  making  a  deed  to  land 
located  in  Indiana,  must  conform  in  every  respect  to  the  law 
of  Indiana  respecting  conveyances,  recording,  signing,  sealing, 
release  of  dower,  etc. 

Sale. — See  definition  of  Sale. 

Sale  is  a  species  of  contract.  The  delivery  must  be  im- 
mediate and  complete  otherwise  it  will  only  be  a  contract  for 
sale.  The  payment  must  be  in  money.  If  in  goods  or  any 
thing  but  money  it  is  barter  or  exchange  and  not  sale. 

A  sale  to  be  valid  must  have  these  conditions:  i.  The 
thing  sold  must  be  in  existence;  2.  The  parties  must  be  com- 
petent; 3.  The  seller  must  be  the  owner  or  his  authorized 
agent;  4.  There  must  be  a  consideration  or  price  paid;  5. 
There  must  be  an  immediate  delivery. 

If  a  man  sell  a  horse,  and  on  going  to  the  stable  to  get  the 
horse  to  deliver  find  him  dead,  the  sale  is  void.     But  a  man 


378  THE   LAW.  OF    BUSINESS. 

may  sell  things  that  are  partly  in  existence  only,  as  a  growing 
crop,  or  the  milk  a  cow  may  produce  for  a  certain  time,  or  a 
colt  which  a  mare  may  be  carrying.     A  man  can  not  sell  what 

•he  does  not  own  unless  he  be  an  agent  for  the  owner.  If  you 
find  a  watch  and  sell  it,  the  owner  can  take  it  wherever  he 
finds  it.     See  the  Law  of  Finding. 

But  in  the  case  of  negotiable  paper  this  rule  does  not  hold 
good.  If  a  man  find  or  steal  a  negotiable  note  not  yet  due 
and  sell  it  he  passes  title  to  an  innocent  purchaser  for  value. 
If  I  sell  J.  B.  Smith  goods  thinking  I  am  selling  to  J.  D. 
Smith,  who  is  entirely  responsible,  I  do  not  pass  title  to  the 
goods  and  J.  B.  Smith  could  not  pass  any  title  to  any  one  to 
whom  he  might  sell  them  that  would  defeat  my  right  to  take 
them  away.  If  I  represent  myself  as  solvent,  when  I  am  not, 
and  buy  goods  on  the  representation  the  seller  may  take  them 
away,  but  not  from  an  innocent  purchaser  after  I  have  sold 
them.  It  is  now  the  custom  with  wholesale  merchants  to 
have  retailers  who  ask  for  credit  make  a  representation  in 
writing  of  their  actual  financial  condition,  and  a  merchant 
who  misrepresented  in  this  respect  and  got  a  large  quantity 
of  goods  for  which  he  could  not  pay  was  found  guilt}'  in  Cin- 
cinnati of  obtaining  goods  under  false  pretenses. 

As  to  the  competency  of  the  parties  the  same  rules  hold 
good  that  have  been  previously  set  forth. 

There  must  be  a  price  paid  and  the  price  must  be  certain 
or  be  capable  of  being  made  so.     An  example  would  be  this: 

j  I  buy  of  A  one  thousands  bushels  of  wheat  at  the  price  at 
which  it  opened  at  the  Chicago  Grain  Exchange  that  morning. 
Neither  of  us  knows  what  it  is  but  it  can  be  ascertained;  or  I 
buy  a  horse  of  B  for  whatever  any  three  dealers  say  he  is 
worth;  the  price  is  not  certain  but  may  be  made  so.  If  they 
fail  or  refuse  to  fix  a  value  the  sale  is  void.  While  the  price 
must  be  certain  the  goods  must  also  be  specific  and  capable  of 


DELIVERY.  379 

positive  identification.  If  I  buy  one  thousand  bushels  of 
wheat  that  exact  quantity  must  be  separated  from  the  bulk 
before  the  sale  is  complete.  There  must  also  be  an  exact 
understanding  as  to  price,  quantity,  quality  and  all  the  ma- 
terial terms  of  the  sale,  for  an  honest  misunderstanding  rela- 
tive to  any  material  fact  will  vitiate  a  sale.  As  to  what 
constitutes  a  delivery  and  other  important  information  con- 
nected with  that  subject,  see  the  discussion  under  that  head 
which  follows. 

Delivery. — It  is  a  maxim  of  the  law  that  an  actual  or  con- 
structive delivery  must  follow  a  bargain  to  complete  a  sale. 
Originally  delivery  was  a  clear  and  unequivocal  act  of  giving 
possession  by  placing  the  subject  of  the  sale  in  the  hands  of 
the  transferee  or  his  agent  or  in  their  warehouses,  w 
carts,  etc.,  but  in  these  times  delivery  is  frequently  symbolical, 
as  delivering  the  key  to  a  room  where  goods  are  stored,  for  a 
delivery  of  the  goods.  At  common  law  delivery  was  not  nec- 
essary to  complete  a  sale  as  between  the  parties  to  the  sale, 
but  as  against  third  parties  it  was  necessary,  as  the  posse 
of  an  article  by  the  seller  after  a  supposed  sale  raised  a  pre- 
sumption of  fraud.  If  I  sell  you  a  horse  and  you  permit  me 
to  retain  possession  of  him,  and  I  then  sell  him  to  another  who 
knows  nothing  of  the  first  sale  and  he  takes  possession  of  the 
horse  you  have  no  enforceable  claim  against  him  for  the  horse; 
only  an  action  against  me  for  the  money  paid  for  the  horse. 

The  rule  of  delivery  is  modified  in  the  case  of  bulky  ar- 
ticles, in  which  a  delivery  of  a  part  for  the  whole  will  be  con- 
strued as  delivery. 

If  the  buyer  is  to  take  goods  away,  then  the  separating  of 
the  goods  from  the  rest  and  counting,  weighing  or  measuring, 
will  constitute  delivery. 

Instructions  are  frequently  given  by  a  buyer  to  a  seller  as 
to  the  manner,  time  and  place  of  delivery.     These  should  be 


380  THE   LAW   OF   BUSINESS. 

followed  exactly,  and  if  any  loss  occur  it  falls  on  the  buyer, 
whereas,  if  instructions  are  not  followed  and  a  loss  occur  it 
falls  on  the  seller.  As  to  the  place  of  delivery  if  no  instruc- 
tions are  given  the  nature  of  the  article  and  its  use  should  be 
taken  into  consideration.  If  it  is  to  be  used  in  a  shop  or  barn 
it  should  be  delivered  there ;  it  is  not  delivered  if  left  at  his 
house. 

If  a  man  buys  goods  and  then  refuses  to  take  them  when 
delivered  or  tendered  he  is  liable ;  the  seller  may  sell  them 
again  and  if  he  does  not  realize  as  much  as  the  first  was  to 
pay  he  will  be  held  liable  for  the  difference. 

Stoppage  in  Transitu. — Under  some  circumstances  a  mer- 
chant who  has  sold  and  shipped  a  bill  has  the  right  of  Stop- 
page in  Transitu.  This  means  the  right  to  stop  goods  while 
in  transit.  It  is  a  right  that  vests  in  the  seller  when  the  goods 
have  been  sold  upon  credit. 

The  right  may  be  exercised  by  the  vendor,  or  a  consignor, 
to  whom  the  vendor  is  liable  for  the  price,  or  a  general  or 
special  agent  acting  for  him.  If  it  is  ascertained  that  the 
buyer  has  become  insolvent  after  buying  the  goods,  and  before 
their  delivery,  the  seller  may  exercise  the  right  of  stoppage  in 
transitu.  It  must  be  exercised  before  the  goods  have  been  de- 
livered to  the  purchaser,  and  before  he  has  transferred  any 
title  in  the  goods  to  any  other.  Notice  should  be  given  to  the 
warehouseman,  or  carrier,  or  whoever  has  custody  of  the 
goods,  that  the  right  is  to  be  exercised,  and  that  he  shall  not 
deliver  the  goods.  If  the  goods  have  been  delivered  to  the 
buyer,  or  to  an  agent  of  the  buyer,  or  have  been  deposited  in 
a  public  warehouse  for  him,  or  a  part  have  been  delivered  for 
the  whole,  or  they  in  any  way,  either  actually  or  constructively, 
come  into  the  possession  of  the  buyer,  then  the  right  of  stop- 
Page  in  transitu  is  defeated.  If  they  have  been  put  in  a  ware- 
house and  held  for  the  payment  of  freight,  they  are  not  in  the 


WARRANT  V.  381 

buyer's  possession.  But  if  the  sale  is  made,  and  then  for  the 
accommodation  of  the  purchaser,  the  goods  are  let  lie  in  the 
store  of  the  seller  for  a  time,  they  have  been  delivered  and  are 
constructively  in  the  possession  of  the  buyer. 

Warranty. — When  a  sale  is  made  the  seller  warrants  the 
title  and  his  right  to  sell,  either  expressly  or  by  implication. 
If  the  thing  sold  is  in  the  seller's  possession  the  warranty  is 
implied;  if  the  thing  is  not  in  the  seller's  possession  the  com- 
mon law  rule  was  "  caveat  emptor  "  (let  the  buyer  beware).  A 
man  ought  to  use  all  his  senses  in  making  a  purchase  and  de- 
mand warranties  for  what  he  is  in  doubt  about.  Misrepresent- 
ation of  any  material  fact  vitiates  the  sale,  for  it  is  a  species  of 
fraud.  A  warranty  made  after  a  sale  is  completed  is  worthless 
as  it  has  no  consideration  to  support  it.  If  the  seller  expressly 
refuse  to  warrant  the  goods  then  no  warranty  can  be  implied. 

If  goods  are  not  as  ordered  the  buyer  may  refuse  to  receive 
them  and  return  to  seller  and  bring  suit  for  breach  of  condi- 
tion ;  but  if  he  keeps  the  goods  and  sells  any  of  them  before 
he  discovers  the  defects  the  value  of  the  goods  sold  will  be  de- 
ducted from  any  judgment  he  may  obtain.  He  may  return  the 
goods,  or  any  part  of  them,  as  soon  as  he  discovers  the  fact 
that  they  are  not  in  accordance  with  the  contract.  If.  when 
.returned,  the  seller  refuse  to  take  them,  then  the  buyer  may 
sell  them  and  recover  from  the  vendor  the  loss  on  the  resale 
of  the  same,  as  well  as  storage  and  charges  for  selling. 

FORM    OF    BILL   OF   SALE. 

Cincinnati,  August  5,  1889. 
Mr.  Thomas  Smith. 

Bought  of  STEINAU  &  FURST,  Jewelers, 

One  H.  C.  Gold  Watch,  -        -     $250-0° 

Paid,  August  5,  1889,  Steinau  &  Furst. 


382  THE    LAW   OF   BUSINESS. 

For  ordinary  every  day  business  the  above  form  is  as  good 
as  any. 

If  it  is  desired  to  have  a  more  pretentious  instrument  the 
following  will  be  found  a  good  form : 

Know  all  Men  by  These  Presents,  That  I,  James 
Pedro,  in  consideration  of  Ninety  Dollars,  paid  me  by  Isaac 
Don,  the  receipt  whereof  is  hereby  acknowledged,  do  hereby 
grant,  sell,  transfer  and  deliver  unto  the  said  Isaac  Don,  the 
following  goods  and  chattels,  viz:  {here  describe  the  goods.) 
To  have  and  to  hold  all  and  singular  the  said  goods  and  chat- 
tels to  the  said  Isaac  Don  and  his  executors,  administrators 
and  assigns,  to  their  own  use  and  behoof  forever,  and  I  hereby 
covenant  with  the  grantee  that- 1  am  the  lawful  owner  of  the 
said  goods  and  chattels,  and  that  they  are  free  from  all  encum- 
brances whatsoever,  and  that  I  have  good  right  to  sell  the 
same  as  aforesaid,  and  that  I  will  warrant  and  defend  the  same 
against  the  lawful  claims  and  demands  of  all  persons. 

In  Witness  Whereof  The  said  James  Pedro  has  set  his 
hand  and  seal  this  5th  day  of  August,  1889. 

L.  S. 

Signed,  sealed  and  delivered 
in  the  presence  of 

If  you  want  to  make  a  Chattel  Mortgage  with  Power  of 
Sale,  insert  in  the  above  form,  between  the  paragraph  ending 
with  phrase,  "demand  of  all  persons"  and  the  one  begining 
"In  witness  whereof,"  the  following  form: 

Provided,  Nevertheless,  That  the  said  Mortgagor,  or 
his  executors  or  administrators  shall  well  and  truly  pay  unto 
the  said  Isaac  Don,  or  his  executors,  administrator  or  assigns, 
the  sum  of  Ninety  Dollars;  then  this  deed  as  also  a  certain 
promissory  note,  bearing  even  date  herewith,  signed  by  the 
said  James  Pedro,  whereby  he  promises  to  pay  the  said  Isaac 


BILL  OF  SALE.  383 

Don  the  said  sum  of  Ninety  Dollars  and  interest  at  the  time 
aforesaid,  shall  both  be  void,  and  otherwise  they  shall  remain 
in  full  force  and  effect. 

And  Provided,  Also,  That  until  default  by  the  said 
James  Pedro,  or  his  executors  or  administrators,  in  the  per- 
formance of  the  condition  aforesaid,  or  of  some  part  thereof, 
it  shall  and  may  be  lawful  for  him  or  them  to  keep  possession 
of  the  said  granted  property,  and  to  use  and  enjoy  the  same; 
but  in  case  of  such  default,  or  if  the  same  or  any  part  thereof, 
shall  be  attached  at  any  time  before  payment,  as  aforesaid,  by 
an}'  other  creditor  or  creditors  of  the  said  Mortgagor,  or  if 
the  said  James  Pedro,  his  executors  or  administrators,  shall  at- 
tempt to  sell  the  same,  or  any  part  thereof,  without  notice  to 
the  said  Isaac  Don,  jor  his  executors,  administrators  or  assigns, 
and  without  his  or  their  assent  to  such  sale,  in  writing  ex- 
pressed, or  shall  remove  the  same,  or  any  part  thereof,  from 
the  place  where  they  now  are,  without  such  notice  and  assent 
then  it  shall  be  lawful  for  the  said  Isaac  Don,  his  executors, 
administrators  or  assigns,  to  take  immediate  possession  of  the 
whole  of  the  said  granted  property,  to  his  or  their  own  use, 
and  to  sell  and  dispose  of  the  whole,  or  so  much  of  said  prop- 
erty, at  public  auction,  as  shall  produce  a  sum  of  money  suf- 
ficient to  pay  and  discharge  the  above  mentioned  debt  or  lia- 
bility, with  interest  and  all  costs  and  charges  of  keeping  and 
selling  the  same,  and  all  just  and  equitable  liens  then  exi-tiiii; 

thereon,  without  further  notice  or  demand,  except  giving 

days'  notice  of  the  time  and  place  of  said  sale  to  said  James 
Pedro,  or  his  legal  representatives ;  and  after  the  said  debt  or 
liability,  with  interest,  costs,  charges  and  liens,  shall  be  BO  dis- 
charged and  satisfied,  the  surplus  of  the  money  arising  from 
said  sale,  and  the  residue  of  said  granted  property  shall  be 
paid  and  restored  to  said  James  Pedro,  or  his  legal  representa- 
tives, discharged  from  all  claim  under  this  mortgage. 


384  THE    LAW    OF    BUSINESS. 

The  note  referred  to  above  may  take  the  following  form : 
$90.00.  August  5,  1889. 

For  value  received  I  promise  to  pay  to  Isaac  Don,  the  sum 
of  Ninety  Dollars  ($90)  in  six  months  from  this  date,  with  in- 
terest to  be  paid  monthly  at  the  rate  of  eight  (8)  per  cent,  per 
annum,  during  said  term,  and  for  such  further  time  as  the  said 
principal  sum,  or  any  part  thereof,  shall  remain  unpaid. 

JAMES  PEDRO. 
Signed  in  the  presence  of : 

Elmer  J.  Dickson. 

Secured  by  a  mortgage  on  personal  property  in  Dayton, 
O.,  to  be  recorded  in  {here  state  the  proper  place  of  record}. 

It  has  become  a  common  custom,  especially  in  all  large 
towns  and  cities  to  sell  goods  On  weekly  and  monthly  pay- 
ments. In  these  cases  the  goods  are  really  not  sold  to  the 
parties  but  leased  upon  conditions  of  payment  of  a  fixed  sum 
at  regular  intervals,  the  articles  becoming  the  property  of  the 
purchaser  or  lessee  when  all  is  paid. 

LEASE  FOR  ARTICLES  SOLD  ON  INSTALLMENTS. 

Denver,  Col.,  Aug.  5,  1889. 
Know  all  Men  by  these  Presents,  That  I,  Thomas 
Bixby,  have  this  day  received  of  S.  B.  Glass  &  Co.,  under  an 
agreement  for  a  conditional  sale,  one  Eclipse  Clothes  Wringer; 
for  the  use  of  said  Clothes  Wringer,  and  as  rent  for  the  same, 
I  have  this  day  paid  to  the  said  G.  B.  Glass  &  Co.,  fifty  cents 
and  promise  further  to  pay  to  them  or  their  legal  representa- 
tives twenty-five  cents  per  week  (the  first  payment  to  be  made 
on  the  1 2th  day  of  August,  1889)  until  such  time  as  the  sums 
so  paid  and  to  be  paid  by  me  shall  amount  to  the  sum  of 
Eight  Dollars,  at  which  time  said  rent  shall  cease,  and  the 
said  wringer  become  my  absolute  property,  but  in  case  of  fail- 


NOTES   AND    BILLS.  385 

ure  to  pay  said  rent,  as  aforesaid,  the  said  S.  B.  Class  &  Co. 
may,  without  being  deemed  guilty  of  trespass  or  tort,  and 
without  thereby  rendering  themselves  liable  to  refund  any 
sums  received  by  them  from  me  as  rent,  as  aforesaid,  enter 
any  house  or  place  where  the  said  wringer  may  be  and  take 
possession  of  and  remove  said  wringer  therefrom,  and  I 
further  agree  that  so  long  as  said  rent  shall  be  payable,  as 
aforesaid,  I  will  not  injure,  sell,  mortgage  or  relet  the  said 
wringer  or  remove  it  from  my  premises,  and  that  in  case  of 
failure  to  pay  said  rent  I  will  on  demand  return  the  said 
wringer  to  the  said  S.  B.  Glass  &  Co.  or  their  legal  represen- 
tatives. 

Witness  my  hand  and  seal  this  5th  day  of  August.  1889. 

Sig. 

Signed  and  sealed    /    

in  presence  of        i    

These  leases  do  not  generally  require  a  seal  or  witnesses 
although  we  believe  in  a  few  States  they  do. 

NOTES  AND  BILLS. 

A  promissory  note  is  a  written  promise  to  pay  a  certain 
sum  of  money  at  a  future  fixed  time,  unconditionally.  It 
must  be  in  writing.  It  must  be  for  money  only,  and  the 
amount  must  be  fixed  and  certain.  The  promise  to  pay  must 
be  absolute.  An  acknowlegement  of  debt  as  "I.  O.  U.."  etc., 
is  not  a  promissory  note.  It  must  be  payable  at  a  certain 
time  or  upon  an  event  that  must  surely  occur.  The  most  im- 
portant feature,  commercially,  of  a  promissory  note,  is  the 
fact  that  it  is  payable  at  all  events,  and  not  dependent  on  any 
contingency  whatever.  The  amount  is  generally  written  in 
both  figures  and  words  and  if  there  is  a  difference  between  the 
two  the  words  control. 
25 


386  THE    LAW    OF    BUSINESS. 

A  Negotiable  Note  is  one  made  payable  to  bearer  or  order. 
In  some  States,  as  Kentucky,  it  must  also  be  made  payable  at 
some  bank.  If  made  payable  to  order  it  must  be  endorsed  on 
the  back  with  the  name  of  the  person  to  whom  it  is  made  pay- 
able if  he  should  sell  or  transfer  it  to  another  before  maturity. 
The  endorser  thus  becomes  responsible  for  the  payment  of  the 
note.  He  may  avoid  liability  of  payment  by  writing  after  his 
name  the  words,  "without  recourse." 

Following  is  a  form  of  a  promissory  note  due  in  ninety 
days  at  six  per  cent,  interest : 

Cincinnati,  O.,  June  18,  1889. 
Ninety  dajrs  after  date,  for  value  received,  I  promise  to  pay 
to  William  T.  Johnson,  or  order,  Nine  Hundred  and  Fifty- 
three  Dollars  ($953.00).     Interest  six  (6)  per  cent. 

Payable  at  Merchant's 

National  Bank.  JAMES  R.  BUCKNER. 

A  Joint  Note  is  one  in  which  two  or  more  people  join  and 
promise  to  pay,  all  signing.  It  usually  reads  "we  promise" 
although  if  "I  promise"  is  used  and  two  or  more  sign,  all  are 
held  and  they  can  be  sued  jointly  or  separately. 

The  proper  form  for  a  joint  and  several  note  is  "We  or 
either  of  us  promise  to  pay,"  but  the  law  construes  joint  notes 
reading  "We  promise"  in  the  same  way  holding  each  one 
liable  for  the  whole  amount. 

Days  of  Grace  is  time  allowed  for  the  payment  of  a  note 
after  it  is  really  due.  This  time  is  three  days.  Banks  charge 
interest  for  them.  If  a  note  has  been  sold  and  endorsed  the 
endorser  must  be  notified  at  the  expiration  of  the  three  days, 
otherwise  he  is  released  from  liability  to  pay.  This  notifica- 
tion of  an  endorser  of  the  failure  of  the  principal  to  pay  the 
note  is  called  Protest.  It  must  be  done  in  proper  form  and  at 
the  proper  time  and  must  be  done  by  a  Notary  Public.     Usu- 


NOTES.  tfy 

ally  sight  bills  are  not  allowed  grace,  hut  it  is  allowed  in  the 
States  of  Maine,  New  Hampshire,  Massachusetts,  North  Caro- 
lina, South  Carolina,  Alabama,  Indiana,  Kentucky,  Wisconsin, 
Iowa,  Michigan  and  Dominion  of  Canada. 

Demand  Notes  are  payable  on  presentation.  They  read 
"On  demand,"  etc.  "I  promise  to  pay,"  etc.  They  are  not 
entitled  to  Grace.  Interest  begins  when  demand  is  made  and 
runs  at  legal  rate  till  the  note  is  paid  unless  stipulated  differ- 
ently in  the  note.  The  endorser  is  only  held  for  a  limited 
time  varying  in  different  States. 

Notes  falling  due  on  Sunday,  or  on  a  legal  holiday,  are 
payable  on  the  day  previous. 

Notes  dated  on  Sunday  are  good  in  most  States,  although 
in  a  few  they  are  void. 

Altering  a  Note  in  any  material  way  by  the  holder  makes 
it  void. 

Notes  given  by  Minors  are  voidable.  This  means  that  the 
minor  can  successfully  resist  the  payment  upon  the  grounds 
of  his  minority  when  signing.  If  he  does  not  urge  this  as  a 
cause  for  not  paying  the  note,  the  court  will  not  take  notice 
of  the  fact  of  the  maker's  minority  and  the  note  will  have  to 
stand  upon  its  merits  as  if  given  by  an  adult. 

Losing  a  Note  by  theft,  or  otherwise,  does  not  release  the 
maker  from  payment  if  the  holder  can  prove  the  amount  and 
consideration. 

Notes  obtained  by  fraud  or  given  by  an  intoxicated  person 
can  not  be  collected. 

An  endorser  has  a  right  of  action  against  all  the  persons 
whose  names  appear  as  endorsers  on  the  note  previous  to  his. 

Accommodation  paper  is  a  note  given  without  any  consider- 
ation, for  accommodation.     Smith  needs  money.     He  goes  to 
Brown  and  says,  "Give  me  your  note  for  $500  for  thirty  d 
Brown  owes  Smith  nothing  but  gives  him  his  note  for  the 


388  THE   LAW   OF    BUSINESS. 

amount  and  he  takes  it  to  a  bank  where  Brown's  credit  is  good 
and  discounts  it  and  raises  the  needed  money.  At  the  end  of 
thirty  days  Smith  must  take  up  the  note  and  return  it  to 
Brown.  These  notes  are  not  valid  between  the  parties  but 
would  be  in  the  hands  of  an  innocent  third  party  without  no- 
tice. Mutual  notes  exchanged  are  good ;  they  are  not  consid- 
ered accommodation  notes  but  business. 

The  words,  "value  received,"  should  always  be  written  in 
a  note,  otherwise  it  might  be  necessary  to  prove  the  considera- 
tion for  which  the  note  was  given. 

Bill  of  Exchange. — See  Definitions.  A  note  after  endorse- 
ment becomes  for  all  practical  purposes  a  bill  of  exchange. 
The  payee  by  his  endorsement  orders  the  maker  to  pay  the 
amount  of  the  note  to  a  third  party  who  may  or  may  not  be 
named.  The  person  making  a  bill  of  exchange  is  called  the 
drawer.  The  person  to  whom  it  is  directed  and  who  is  ordered 
to  pay  is  called  the  drawee.  The  person  to  whom  the  mone}' 
is  payable  is  called  the  payee.  When  the  bill  is  presented  to 
the  drawee  he  will  signify  his  intention  of  paying  or  not  as 
the  case  may  be.  If  he  intends  to  pay  he  will  write  across  the 
face  of  the  bill  the  word  "  Accepted "  and  sign  his  name 
beneath.     He  then  becomes  the  acceptor. 

A  bill  must  be  written.  It  must  be  properly  dated  both  as 
to  time  and  place  of  making.  The  time  of  payment  should  be 
expressed.  If  no  time  is  stated  it  is  understood  to  be  payable 
on  demand.  This  demand  by  one  person  of  another  to  pay 
money  must  be  made  by  right  and  not  as  asking  a  favor.  It 
must  be  absolute  and  not  contingent. 

A  Foreign  Bill  is  one  of  which  the  drawer  and  drawee  re- 
side in  different  countries. 

An  Inland  Bill  is  one  of  which  the  drawer  and  drawee  re- 
side in  the  same  country. 

A  bill  should  always  be  presented  to  the  drawee  or  some 


NOTES.  389 

one  authorized  to  represent  him.  If  he  refuse  and  the  bill 
addressed  to  any  other  party  present  it  at  once  to  the  other 
party.  In  order  to  hold  the  drawers  or  indorsers  you  must 
present  it  to  each  one  to  whom  it  is  addressed.  Presentation 
must  be  made  in  business  hours  and  on  business  days,  not  on 
Sundays  or  holidays.  As  to  place  of  presentation,  it  may  be 
made  any  place,  at  his  home,  place  of  business,  or  wherever 
the  drawee  may  be  found. 

Indorsers  are  entitled  to  immediate  notice,  as  unreasonable 
delay  will  relieve  them.  As  soon  as  the  indorser  receives  no- 
tice he  should  notify  the  drawer,  or  other  indorser,  to  whom 
he  expects  to  look  for  payment. 

Notices  are  usually  sent  by  mail.  Indorsers  and  acceptors 
guarantee  the  solvency  of  the  party  and  the  validity  of  the 
note  or  bill. 

An  indorser's  contract  is  conditional.  He  contracts  to  pay 
if  the  maker  does  not,  after  demand  and  notice  have  been 
given.  However,  it  is  not  a  collateral  agreement;  he  simply 
contracts  to  pay  his  own  debt. 

A  bill  or  note  should  be  presented  on  the  day  it  is  legally 
due,  at  the  place  appointed,  or  at  the  house  or  place  of  busi- 
ness of  the  maker  or  acceptor ;  in  case  of  death,  to  his  per- 
sonal representative ;  in  case  of  insolvency,  to  his  legal  repre- 
sentative. If  the  maker  leave  the  country,  presentation  at  his 
last  place  of  abode  will  hold  indorsers;  if  after  diligent  search 
the  maker  of  a  note  or  acceptor  of  a  bill  can  not  be  found  the 
legal  rights  of  the  payee  are  as  secure  as  though  presentation 
had  been  made. 

A  Surely  on  a  note  is  a  person  who  becomes  bound  for  its  . 
payment  for  the  maker  who  is  already  bound.     A  surety's  en- 
gagement must  be  in  writing.     It  is  not  collateral,  but  binds 
him  as  an  original  debtor.     He  must  pay  in  any  event  and 
may  be  sued  before  the  maker  if  their  contract  is  not  a  joint 


390  THE   LAW   OF   BUSINESS. 

one,  and  if  it  is  at  the  same  time  with  him.  A  surety  is  en- 
titled to  all  collaterals  given  to  creditor  to  secure  the  debt,  and 
if  the  creditor  give  the  collaterals,  up  to  the  debtor  to  the 
prejudice  of  the  surety  it  will  discharge  the  surety  or  indorser 
from  liability.  Neither  has  the  holder  of  a  note  the  right  to 
extend  the  time  of  payment  to  the  debtor  or  do  anything 
detrimental  to  the  surety's  interests,  otherwise  surety  will  be 
released.  If  the  principal  debtor  is  a  minor  that  fact  will  not 
release  the  surety. 

An  indorser  can  not  be  released  before  maturity,  because 
his  liability  must  be  fixed  by  demand,  notice  and  presentation. 

When  banks  have  paper  and  send  out  notice  before  matur- 
ity, it  is  a  demand  and  notice. 

First  is  presentment  and  demand  of  payment;  then  if  re- 
fused, comes  protest;  then  follows  notice  to  all  parties  inter- 
ested. 

BONDS. 

A  bond  is  a  species  of  contract  by  which  one  person  be- 
comes bound  to  another  in  a  certain  sum,  the  payment  of  the 
whole  or  a  part  of  which  depends  upon  certain  conditions  set 
forth  in  the  bond.  The  maker  of  the  bond  is  called  the 
obligor,  and  the  one  to  whom  he  binds  himself  the  obligee. 
The  amount  of  his  obligation  is  called  the  penalty  or  penal 
sum,  because  the  payment  is  the  penalty  of  standing  for  the 
good  conduct  of  some  person  employed  in  a  public  or  private 
capacity,  who  has  defaulted  or  failed  to  perform  his  duty. 
The  condition  of  the  bond  usually  is  the  faithful  and  honest 
performance  of  certain  duties,  and  it  is  very  important  that 
this  clause  be  set  out  clearly  and  state  fully  the  reason  for 
the  existence  or  creation  of  the  bond.  Nearly  all  public  offi- 
cers and  man}7  private  employes,  especially  those  who  handle 
their  employers'  money,  are  required  to  give  bond  for  the 
faithful  and  honest  discharge  of  their  duties. 


AGENTS. 


39 1 


Form  of  Bond. — The  following  form  will  be  found  suf- 
ficient for  all  practical  purposes: 

Know  all  Men  by  these  Presents,  That  I,  James 
Mills,  of  Quincy,  in  the  State  of  Illinois,  am  held  and  stand 
firmly  bound  unto  John  D.  Banks,  of  Chicago,  in  the  State  of 
Illinois,  in  the  sum  of  One  Thousand  Dollars  ($i,ooo),  to  be 
paid  to  the  said  John  D.  Banks,  or  his  executors,  administra- 
tors, or  assigns,  to  which  payment  I  bind  myself,  m\  heirs, 
administrators,  or  executors,  firmly  by  these  present-. 

The  condition  of  this  obligation  is  such  that  if  William 
Timson,  of  Quincy,  Illinois,  faithfully  and  honestly  perform 
all  the  duties  incumbent  upon  him  as  collector  for  the  said 
John  D.  Banks,  then  this  obligation  shall  be  void:  otherwise 
it  shall  remain  and  be  in  full  force  and  virtue. 

In  Witness  Whereof  I  have  hereunto  set  my  hand  and 
seal  this  18th  day  of  September,  A.  D.  1889. 

JAMES- MILLS,  L.  S. 

Signed  and  sealed  in  the  \ 

presence  of  j    ALFRED  BOGGS. 

AGENTS. 

Persons  who  do  business  for  others  are  agents.  Those  who 
employ  them  are  called  principals.  The  agent's  authority 
must  be  equal  to  his  duties.  If  they  are  authorized  to  bind 
their  principals  in  written  agreements  their  authority  to  do  so 
should  also  be  in  writing.  If  they  are  to  convey  real  estate, 
requiring  a  sealed  instrument,  their  authority  should  als 
under  seal.  An  exception  to  this  rule  is  in  the  case  of  a  cor- 
poration, which  may,  by  a  vote  of  the  board  of  directors,  au- 
thorize their  agent  to  contract  by  deed. 

Two  principles  underlie  agency.     The  first   is  tin 
the  law  of  agency,  and  the  second  is  the  basis  of  the  respon- 
sibility of  the  principal  for  the  acts  of  the  agent. 


392  THE    LAW   OF    BUSINESS. 

i .  The  first  principle  is  that  the  agent  is  but  the  instru- 
ment of  the  principal,  who  acts  by  or  through  him.  This 
makes  the  principal  responsible  for  his  own  acts,  and  their 
legitimate  results,  equally  whether  he  does  them  directly  him- 
self, or  mediately,  through  some  outside  instrumentality ;  and 
it  matters  not  whether  he  uses  an  unconscious  and  material 
instrument,  or  a  living  and  intelligent  instrument ;  whether  he 
signs  his  name  with  a  pen,  or  by  a  man  whom  he  requests  to 
sign  for  him.  The  act  done  is  the  act  of  the  principal  in  either 
case.  He  assumes  the  relations,  acquires  the  rights,  and  in- 
curs the  obligations  which  properly  result  from  these  acts 
equally  in  either  case. 

2.  The  second  principle  fixes  the  relation  of  third  parties 
to  the  principal.  It  is  this :  As  between  a  principal  and  a 
third  party  who  has  supposed  himself  to  be  dealing  with  a 
principal  by  means  of  one  representing  himself  as  an  agent, 
the  principal  is  responsible  for  and  is  bound  by  the  acts  of  his 
agent  on  one  of  two  grounds  :  The  first  is  that  he  has  actually 
created  this  agency  ;  the  second  is  that  he  has  in  some  way,  by 
word  or  act,  fully  led  the  third  party  to  believe  that  the  per- 
son is  his  agent.  If  he  has  acted  or  spoken  in  such  manner 
as  to  justify  the  belief  in  the  third  party  that  this  person  had 
from  him  sufficient  authority  to  do  that  particular  thing,  as  his 
agent,  he  can  not  answer  that  the  third  party  made  a  mistake, 
or  that  the  agent  had  no  authority,  or  that  his  authority  did 
not  extend  that  far.  When  courts  decide  this  question  all  the 
attendant  circumstances  of  the  transaction,  and  the  usages  in 
regard  to  such  transactions,  are  taken  into  consideration. 

A  general  agent  is  one  authorized  to  transact  all  of  his 
principal's  business,  or  all  of  his  business  of  a  certain  kind.  A 
particular  or  special  agent  is  one  authorized  to  do  one  or  two 
particular  or  special  things. 

If  a  special  agent  exceed  his  authority  the  principal  is  not 


AGENTS.  393 

bound.  If  a  general  agent  exceed  his  authority  his  principal 
is  bound,  provided  the  agent  acted  within  the  ordinary  scope 
of  the  business  he  was  authorized  to  transact,  and  the  party 
dealing  with  him  did  not  know  he  was  exceeding  his  author- 
ity. A  man  may  be  a  general  agent  for  a  special  purpose,  as 
a  milling  company  may  employ  an  agent  to  purchase  all  their 
grain.  As  long  as  he  purchases  grain  his  principals  will  be 
held  responsible.  If  he  should  buy  iron  ore  or  wool,  it  would 
be  considered  so  far  out  of  the  usual  scope  of  the  milling  bus- 
iness that  his  principal  would  not  be  held. 

It  is  a  fundamental  principle  that  a  man  can  only  be  bound 
by  those  acts  of  another  which  he  has  authorized.  A  railroad 
corporation  appointed  an  agent  to  issue  certificates  of  stock, 
upon  a  transfer  on  the  company's  books  by  a  previous  owner 
and  a  surrender  of  that  owner's  certificate ;  the  agent  fraudu- 
lently issued  certificates  for  his  own  benefit,  not  complying 
with  either  of  the  above  conditions.  His  acts  were  held  to  be 
beyond  the  scope  of  his  authority,  and  his  principals  not 
bound.*  An  agent  was  authorized  to  purchase  goods  to  a  cer- 
tain amount.  He  purchased  beyond  that  amount,  assuring  the 
seller  that  he  had  not  exceeded  the  amount  authorized,  and 
the  seller  sold  on  this  assurance.  The  majority  of  the  court 
(  Wilde,  J.,  dissenting)  held  that  he  exceeded  his  authority  and 
the  principal  was  not  held.f  There  is  serious  doubt  about 
this  last  decision,  and  it  is  evident  that  this  principle  must  not 
be  extended  too  far.  We  introduce  it  here  to  show  how  closely 
the  line  is  drawn  on  some  of  these  cases  arising  under  the  law 
of  agency. 

An  agent  may  have  authority  to  sign  his  principal's  name 
to  notes  for  the  purpose  of  raising  money  to  be  used  in  the 


♦Mechanics'  Bank  vs.  N.  Y.  &  N.  H.  R.  R.  Co.     3  Kern.  599. 
fMussy  vs.  Beecher.     3  Cush.  511. 


394  THE   LAW  OF   BUSINESS. 

principal's  business,  and  then  having  procured  the  money  he 
may  convert  it  to  his  own  use ;  and  the  agent  may  have  in- 
tended to  do  this  at  the  time,  but  the  principal  would  be  held 
responsible  for  all  the  notes,  because  the  whole  transaction  is 
strictly  and  literally  authorized.  The  misappropriation  of  the 
money  is  a  breach  of  trust,  and  would  not  affect  an  innocent 
third  party. 

Signature  by  Agent. — The  best  way  for  an  agent  to  sign  a 
writing  for  his  principal  is  A  by  B,  A  being  principal  and  B 
agent.  If  he  sign  B  for  A,  B  is  held  to  be  the  principal  and 
A  the  agent,  although  the  intention  would  seem  to  be  to  make 
B  the  agent.  It  is  essential  in  deeds  that  the  name  of  the 
principal  appear  distinctly  as  such,  so  that  there  be  no  confu- 
sion about  who  is  principal  and  who  agent. 

Extent  of  Authority. — An  agent  is  considered  to  have  au- 
thority to  do  those  subordinate  acts  which  are  necessary  to 
the  principal  act  which  he  is  authorized  to  do,  or  which  are 
usually  and  properly  done  in  connection  with  it,  or  which  are 
essential  to  carry  it  into  effect.  An  agent  to  collect  debts 
may  exercise  his  discretion  in  giving  the  debtor  reasonable 
indulgence  in  time  of  paying.  An  authority  to  sell  does  not 
carry  with  it  authority  to  give  credit  unless  that  is  the  usage 
of  the  trade.  If  an  agent  sells  for  credit,  without  authority 
to  do  so,  he  becomes  personally  responsible  to  the  principal 
for  the  whole  debt.  If  an  agent's  authority  is  given  in  a 
written  instrument,  and  the  person  dealing  with  him  know  of 
such  instrument,  it  must  be  followed  strictly;  usage  will  not 
suffice  to  justify  a  variance  from  its  directions.  A  power  to 
sell  does  not  carry  with  it  a  power  to  warrant,  unless  the  sale 
is  one  usually  attended  with  warranty.  If  the  usage  is  in  any 
particular  case  to  warrant,  and  the  principal  expressly  in- 
struct his  agent  not  to  warrant,  and  the  agent  disobey  the 
instructions  and  warrant  the  article,  and  the  buyer  is  justified 


agent's  liability.  395 

in  believing  that  the  agent  had  authority  to  do  so,  the  princi- 
pal will  be  held  to  the  warranty  notwithstanding  his  instruc- 
tions to  the  agent. 

Usage  is  very  important  in  all  these  questions.  The  rule 
may  be  laid  down,  however,  that  usage  will  not  enlarge  or 
extend  an  authority  given  in  writing  and  known  to  the  party 
dealing  with  the  agent;  but  in  case  of  oral  authority  usage 
frequently  enlarges  and  modifies  the  scope  of  the  agent's 
authority. 

If  an  agent  selling  goods  makes  a  material  misrepresenta- 
tion which  he  believes  to  be  true,  but  which  his  principal 
knows  to  be  false,  it  is  the  falsehood  o£  the  principal  and  avoids 
the  sale. 

Right  of  Action  under  Contract  made  by  Agints. — In  case 
of  a  simple  contract  an  undisclosed  principal  may  show  that 
the  apparent  party  to  the  contract  was  really  his  agent  and 
put  himself  in  the  place  of  the  agent,  but  not  so  as  to  impair 
the  rights  of  the  other  party.  In  contracts,  by  deed,  no  party 
can  have  any  right  of  action  under  them  but  the  party  whose 
name  is  in  them. 

A  purchaser  for  an  unknown  principal  whom  he  does  not 
disclose  is  himself  liable  for  the  price. 

An  unknown  principal  can  not  come  in  and  adopt  his 
agent's  contract  in  part  and  reject  it  in  part ;  he  must  adopt  it 
as  a  whole  or  not  at  all. 

If  the  principal's  name  is  disclosed  at  the  time  of  making 
the  contract  he  is  the  one  to  sue  upon  the  contract.  This  is 
true  even  if  he  be  a  resident  of  another  State  than  that  in 
which  the  agent  resided  and  made  the  contract. 

Agent's  Liability.— As  a  general  rule  an  agent  is  not  per- 
sonally liable.  He  becomes  liable  in  the  following  instances: 
i.  When  he  transcends  his  authority  or  departs  from  its  pro- 
visions.    2.  When  he  expressly  pledges  his  own  liability,  and 


396  THE   LAW   OF   BUSINESS. 

in  this  case  he  is  liable  even  if  he  describe  himself  as  agent. 
3.  When  he  conceals  his  character  as  agent.  4.  When  he  so 
conducts  himself  or  his  agency  as  to  render  his  principal  inac- 
cessible or  irresponsible.     5.  When  he  acts  in  bad  faith. 

If  an  agent's  acts  are  open  to  two  constructions,  one  of 
which  would  bind  himself  and  the  other  the  principal,  the  law 
prefers  that  construction  which  binds  the  principal. 

If  a  party  deals  with  an  agent  and  knows  him  to  be  such, 
and  knowing  that  the  principal  is  bound,  yet  takes  the  agent's 
individual  note,  the  principal  is  discharged. 

If  a  person  sign  as  agent  of  a  company  which  has  no  ex- 
istence he  is  personally  liable. 

If  an  agent  acts  without  authority  he  is  personally  liable. 

The  case  where  an  agent  acts  without  authority  but  hon- 
estly believes  that  he  has  authority  may  be  involved  in  some 
doubt.  The  test  of  his  personal  liability  will  probably  be 
found  in  his  means  of  knowing  the  facts  in  the  case.  If  he 
could  have  known,  but  did  not  through  his  negligence  or  fault 
of  his  own,  then  he  will  be  held  personally  liable.  Of  this 
there  can  be  no  reasonable  doubt.  How  about  the  case  where 
he  could  not  possibly  know  but  what  his  authority  was  good, 
as  in  the  case  of  a  forged  letter  of  instructions  which  he  could 
not  detect?  He  deals  with  a  third  party  who  is  also  entirely 
innocent  and  a  loss  occurs.  Who  is  to  bear  it?  This  is  a 
hard  case.  We  believe,  however,  that  it  will  still  fall  upon  the 
person  who  supposes  he  is  acting  as  agent,  although  there  are 
decisions  holding  otherwise.  The  loss  must  fall  between  him 
and  the  innocent  third  party,  as  it  is  well  settled  that  the  sup- 
posed principal,  whose  name  was  forged  to  the  letter  giving 
the  authority,  can  not  be  held.  It  seems  only  just  that  the 
loss  should  fall  upon  him  who  innocently  yet  falsely  assumed 
this  authority. 

The  question  still  remains  whether  the  supposed  agent  can 


EFFECT   OF   AGENT'S    MISCONDUCT.  397 

be  held  on  the  contract  which  he  may  make  with  a  party  under 
the  impression  that  he  has  the  authority  to  do  so.  And  it  has 
been  decided  that  he  can  be  held,  but  we  think  that  this  is 
carrying  the  principle  too  far  and  incline  to  the  view  of  Par- 
sons, that  the  better  and  more  equitable  opinion  would  be  that 
the  contract  is  wholly  void. 

Revocation  of  Authority. — Authority  may  be  revoked  at 
any  time,  unless  the  agent  have  an  interest  in  the  business  or 
the  authority  is  given  for  a  valuable  consideration.  In  case  of 
a  special  agent  notice  of  revocation  is  not  necessary,  but  when 
the  authority  of  a  general  agent  is  revoked,  the  principal  will 
be  bound  by  the  further  acts  of  the  agent  done  with  third 
parties  accustomed  to  dealing  with  him  in  that  capacity,  unless 
he  make  the  revocation  as  notorious  as  was  the  fact  of  the 
agency.  This  is  usually  done  by  advertising.  Third  parties 
who  never  dealt  with  such  agent  before  the  revocation,  but 
who  had  reason  to  believe  as  a  part  of  the  general  community 
that  such  agency  existed,  and  had  no  means  of  knowing  of 
the  revocation,  may  hold  the  principal  liable  for  the  acts  of  the 
agent  after  revocation. 

Revocation  may  be  affected  expressly,  or  by  some  action 
relative  to  the  subject-matter  that  is  irreconcilable  with  the 
continuation  of  the  agency.  The  death  of  the  principal  al- 
ways revokes  the  agency  unless  the  agent  has  an  interest  in 
the  property  on  which  his  power  is  to  be  exercised.  The 
death  of  the  agent  also  revokes  the  authority.  If  a  firm  be 
agent  and  one  member  of  the  firm  die,  his  estate  can  not  be  held 
for  subsequent  misuse  of  the  authority  by  the  surviving  partner 

Effect  of  Agent's  Misconduct.—  A  principal  can  not  benefit 
by  the  fraudulent  misrepresentation  of  his  agent,  even  if  he 
be  entirely  innocent  and  ignorant  of  the  practice  of  the  fraud, 
and  if  the  party  dealing  with  the  agent  suffer  from  the  fraud 
the  principal  must  make  compensation. 


398  THE   LAW   OF   BUSINESS. 

The  principal  can  not  take  advantage  of  a  better  bargain 
which  his  agent  has  obtained  by  falsely  representing  matters 
peculiarly  within  his  or  his  principal's  knowledge,  although 
he  be  innocent  and  there  be  no  actual  fraud,  but  the  third 
party  may  rescind  the  contract  and  recover  back  money  paid 
to  the  principal  by  reason  of  such  misrepresentation. 

Notice  to  an  agent  is  notice  to  the  principal  respecting  any 
matter  distinctly  within  the  scope  of  the  agency,  if  given 
before  the  transaction  begins.  Knowledge  obtained  by  the 
agent  in  the  course  of  that  particular  transaction  is  notice. 

Actions  brought  by  third  parties  for  money  paid  to  an 
agent  to  which  the  principal  has  color  of  right  should  be 
brought  against  the  principal. 

If  an  agent  depart  from  instructions  and  the  principal  ac- 
cept the  results  of  his  act  he  thus  discharges  the  agent  from 
personal  liability  for  such  deviation. 

If  a  principal  proposes  to  repudiate  the  act  of  an  agent 
who  has  deviated  from  instructions  he  must  do  so  at  once  and 
unequivocally  as  soon  as  he  is  fully  acquainted  with  the  cir- 
cumstances. If  he  delay  to  see  whether  he  may  have  a 
chance  of  making  a  profit,  or  if  he  exercise  acts  of  owner- 
ship over  the  property,  he  will  be  held  to  have  accepted  and 
confirmed  the  act  of  his  agent. 

An  agent  can  not  in  general  delegate  his  power  to  another 
unless  he  is  specially  empowered  to  do  so. 

An  agent  is  bound  to  exercise  such  care  and  diligence  in 
the  management  of  his  principal's  business  as  a  reasonable 
man  under  similar  circumstances  would  take  of  his  own. 

An  agent  may  not  dispute  his  principal's  title  unless  such 
title  were  obtained  by  fraud. 

An  agent  must  not  place  himself  adverse  to  the  interests 
of  his  principal. 

An  agent  must  keep  a  correct  account  of  all  money  trans- 


POWER    OF    ATTORNEY.  399 

actions  and  render  the  same  to  his  principal  when  called  upon 
or  at  proper  times,  and  if  he  so  mix  his  own  and  his  prin- 
cipal's property  that  he  can  not  render  an  exact  account  the 
whole  of  what  is  thus  undistinguishable  is  held  to  belong  to 
the  principal.  All  profits  made  by  an  agent  belong  to  the 
principal,  except  the  agent's  proper  compensation.  If  an 
agent  perform  his  services  well  and  truly,  according  to  in- 
structions and  the  principal  repudiate  and  refuse  to  accept, 
the  agent  may  recover  from  the  principal  the  stipulated  price 
for  his  services. 

POWER  OF  ATTORNEY. 

An  attorney  is  an  agent  for  a  special  purpose.  A  Utter  or 
power  of  attorney  is  authority  in  writing  by  which  one  or 
more  persons  give  to  one  or  more  other  persons  power  to 
transact  a  particular  lawful  business  for  them.  The  rules  of 
law  governing  attorneys  acting  under  special  letter  of  author- 
ity are  the  same  as  previously  recited  for  agents. 

FORM  OF  GENERAL  POWER  OF  ATTORNEY. 

Know  all  Men  by  these  Presents,  That  I,  Charles 
Jolley,  of  Hebbardsville,  Athens  Co.,  O.,  have  constituted,  or- 
dained and  made,  and  in  my  stead  and  place  put,  and  by  these 
presents  do  constitute,  ordain  and  make,  and  in  my  stead  and 
place  put  Elmer  Dent,  of  New  Haven,  Connecticut,  to  be  my 
true,  sufficient,  and  lawful  attorney  for  me  and  in  my  name 
and  stead  and  to  my  use,  to  ask,  demand,  levy,  require,  re- 
cover, and  receive  of  and  from  all  and  every  person  or  persons 
whomsoever  the  same  shall  or  may  concern,  all  and  singular 
sum  and  sums  of  money,  debts,  goods,  wares,  merchandise,  ef- 
fects, and  things  whatsoever  and  wheresoever  they  shall  and 
may  be  found  due,  owing,  payable,  belonging,  and  coming 
unto  me  the  constituent,  by  any  ways  and  means  whatsoever. 

Giving  and  Hereby  Granting  Unto  Elmer  Dent,  said 


400  THE    LAW   OF    BUSINESS. 

attorney,  my  full  and  whole  strength,  power  and  authority  in 
and  about  the  premises;  and  to  take  and  use  all  due  means, 
course,  and  process  in  the  law  for  the  obtaining  and  recovering 
of  the  same;  and  of  recoveries  and  receipts  thereof,  and  in  my 
name  to  make,  seal  and  execute  due  acquittance  and  discharge ; 
and  for  the  premises  to  appear,  and  the  person  of  me  the  con- 
stituent to  represent  before  any  governor,  judges,  justices,  of- 
ficers and  ministers  of  the  law,  whatever,  in  any  court  or 
courts  of  judicature,  and  there  on  my  behalf  to  defend,  answer 
and  reply  unto  all  actions,  causes,  matters  and  things  whatso- 
ever relating  to  the  premises.  Also,  to  submit  any  matter  in 
dispute  to  arbitration  or  otherwise ;  with  full  power  to  make 
and  substitute  one  or  more  attorneys  under  him,  said  attorney, 
and  the  same  again  at  pleasure  to  revoke.  And  generally  to 
say,  do,  act,  transact,  determine,  accomplish,  and  finish  all 
matters  and  things  whatsoever  relating  to  the  premises  as 
fully,  amply  and  effectually,  to  all  intents  and  purposes,  as  I, 
the  said  constituent,  if  present,'  ought  or  might  personally,  al- 
though the  matter  should  require  more  special  authority  than 
is  herein  comprised,  I,  the  said  constituent,  ratifying,  allowing 
and  holding  firm  and  valid  all  and  whatsoever  Elmer  Dent, 
said  attorney,  or  his  substitutes  shall  lawfully  do,  or  cause  to 
be  done  in  and  about  the  premises,  by  virtue  of  these  presents. 
In  Witness  Whereof,  I  have  hereunto  set  my  hand  and 
seal  this  18th  day  of  September,  A.  D.  1889. 

CHARLES  JOLLEY.  [L,.  S.] 
Signed,  sealed  and  delivered  in 
presence  of  John  Vorhes. 

FORM  OF  SPECIAL  POWER  OF  ATTORNEY. 

Know  all  Men  by  these  Presents,  That  I,  Peter  Hib- 
bard,  of  Hebbardsville,  Athens  Co.,  O.,  hereby  constitute  and 
appoint  Albert  Lawson,  of  St.  Louis,  Mo.,  to  be  my  true  and 


PARTNERSHIP.  401 

lawful  attorney  for  me,  and  in  my  name  and  stead  to  (here 
state  the  special  power  to  be  given),  hereby  granting  unto  him. 
said  attorney,  full  power  and  authority,  in  my  name  and  be- 
half, to  sign,  seal,  acknowledge  and  deliver  any  and  all  deeds, 
or  other  instruments  in  writing,  which  he  may  deem  neci 
or  proper  in  the  premises,  and  otherwise  to  act  in  and  con- 
cerning the  premises  as  fully  and  effectually  as  I  might  do  if 
personally  present. 

In  Witness  Whereof,  I  have  hereunto  set  my  hand  and 
seal  the  18th  day  of  September,  A.  D.  1889. 

PETER  HIBBARD,  [L.  S.] 
Signed  and  sealed  in  presence 
of  John  J.  Coe. 

PARTNERSHIP. 

A  partnership  consists  of  the  combination  of  two  or  more 
persons  in  business  for  common  profit,  each  one  contributing 
his  property,  money,  labor  and  skill,  or  one  or  all  of  these. 

A  partnership  may  be  formed  by  oral  or  written  agree- 
ment. It  is  always  best  whatever  the  other  relation  of  the 
parties  may  be  to  have  the  partnership  agreement  clearly  eel 
forth  in  writing. 

Persons  competent  to  transact  business  on  their  own  ac- 
count may  enter  into  partnership,  the  disabilities  of  infancy, 
lunacy,  coverture,  etc.,  applying  equally  in  both  cases. 

The  members  of  the  partnership  are  called  partners. 

An  ostensible  partner  is  one  whose  name  is  published  to 
the  world  as  such,  and  who  usually  takes  an  active  part  in 
the  business. 

A  nominal  partner  is  one  in  name  only. 

A  silent  or  dormant  partner  is  one  really  a  partner  but  who 
strictly  takes  no  share  in  the  transaction  or  control  of  the 
partnership  business. 

A  secret  partner  is  one  not  openly  declared  to  be  a  partner. 
26 


402  THE    LAW   OF   BUSINESS. 

Dormant  and  secret  partners  are  liable  equally  with  other 
members  of  the  firm  when  discovered. 

Partners  must  share  losses  in  the  same  ratio  in  which  they 
share  profits  unless 'there  is  a  written  contract  to  the  contrary. 

All  kinds  of  property  may  be  held  in  partnership,  and 
when  real  estate  is  purchased  with  partnership  funds,  for 
partnership  purposes,  it  will  be  treated  as  partnership  prop- 
erty, and  held  like  personal  property,  chargeable  with  the 
debts  of  the  firm.  A  widow  of  a  member  of  a  firm  has  no 
dower  in  partnership  real  estate  until  all  the  firm  debts  are 
paid.  These  personal  incidents  of  partnership  real  estate 
cease  as  soon  as  the  debts  of  the  firm  are  paid,  and  all  remain- 
ing real  estate  has  all  the  incidents  of  real  property  as  to 
conveyance,  inheritance,  dower,  etc.  The  firm  debts  to  be 
settled  before  real  property  assumes  its  proper  character  in- 
clude debts  due  from  one  partner  to  the  other. 

A  partnership  must  be  voluntary.  No  partner  or  majority 
of  partners  can  introduce  a  new  member  into  the  firm  with- 
out the  consent  of  all  the  others.  If  one  partner  sells  out  his 
interest  either  to  a  remaining  partner  or  to  an  outside  party  it 
works  a  dissolution  of  the  partnership — all  must  agree  to 
renew  it.  An  employe  who  receives  for  his  services  a  stipu- 
lated share  of  the  profits  is  not  a  partner. 

A  person  who  loans  money  to  another  to  assist  him  in  his 
business  upon  the  agreement  that  he  is  to  receive  lawful  in- 
terest for  the  use  of  it  and  in  addition  a  share  of  the  profits  of 
business,  may,  under  some  circumstances,  be  considered  a 
partner,  as  if  a  third  party  who  is  a  creditor  of  the  borrower, 
upon  a  debt  which  has  arisen  in  the  same  business  which  this 
money  was  lent  to  assist,  should  sue  the  lender  as  a  partner 
and  claim  that  he  took  away  profits  of  the  business  that 
might  have  been  used  to  pay  this  debt.  He  will  be  held  as  a 
partner  and  he  can  not  set  up  the  defense  that  the  contract 


PARTNERSHIP.  ^q-j 

was  usurious,  for  that  is  unlawful  and  he  can  not  rest  his  de- 
fense on  his  own  wrong. 

In  general,  one  partner  can  not  bring  suit  at  law  against 
another  concerning  any  matters  growing  out  of  partnership 
affairs.  These  differences  must  usually  '  be  referred  to  courts 
of  equity.  But  a  partner  may  sue  a  co-partner  on  an  agree- 
ment to  do  an  act  that  does  not  involve  partnership  account* ; 
or  on  a  promise  made  before  the  partnership  was  entered  into 
to  make  certain  advances  of  capital  to  the  firm ;  or  on  his 
partner's  note  for  advances  made  to  him ;  or  for  damage  done 
to  his  private  property  which  the  firm  had  used ;  or  for  a  bal- 
ance after  all  their  accounts  are  settled  up. 

If  a  man  is  a  member  of  two  firms  the  firms  can  not  be 
parties  to  a  suit,  because  this  person  would  then  be  both  plain- 
tiff and  defendant  of  record  in  the  same  action. 

If  a  partner  retire  from  a  firm  but  continue  to  receive  a 
share  of  the  profits  he  is  liable,  but  not  if  he  receive  an  annuity 
or  a  definite  sum  not  depending  in  any  way  upon  profits. 
When  a  partner  retires  from  a  firm  notice  should  be  given  by 
public  advertisement  or  by  letters  to  the  customers  of  the 
firm,  or  both. 

A  nominal  partner  shares  neither  in  profits  or  losses,  but  is 
general^  held  responsible  for  the  debts  of  the  partnership.  If 
he  is  not  a  partner  but  represents  himself  to  be  to  certain  per- 
sons and  they,  upon  this  representation,  give  the  firm  credit, 
he  will  be  held  liable  as  a  partner. 

The  universal  rule  of  law,  both  in  Europe  and  this  country. 
is  that  the  whole  firm  and  all  the  members  of  a  co-partnership 
are  bound  by  the  acts  and  contracts  of  one  partner  with  refer- 
ence to  partnership  business  and  affairs — the  act  of  one  is  the 
act  of  all.  It  is  even  held  by  good  authority  that  one  partner 
may  make  a  valid  assignment  of  all  the  partnership  property 
to  pay  the  debts  of  the  firm.     A  partner  may  sell  the  whole 


404  THE    LAW    OF    BUSINESS. 

stock  in  trade  by  a  single  contract,  and  then  apply  the  pro- 
ceeds fraudulently  to  the  payment  of  his  private  debts  and  this 
fact  will  not  avoid  the  sale  if  the  purchaser  is  wholly  innocent 
of  the  fraud.  But  if  a  partner  dissent  from  a  contract  which 
his  co-partner  is  making  and  the  third  party  have  notice  of 
such  dissent  he  could  not  hold  the  dissenting  partner.  A  and 
B  are  partners.  C  applies  for  credit.  A  is  willing  to  extend 
credit  but  B  objects.  A  says  he  will  take  the  risk  and  credits 
C  for  one  hundred  dollars.  C  fails  to  pay.  A  must  stand  the 
loss  individually ;  B  can  not  be  held  liable. 

If  I  loan  money  to  a  partner  I  can  not,  as  a  general  rule, 
recover  from  the  firm,  unless  I  can  prove  that  the  money  was 
actually  applied  to  the  firm's  use.  But  if  the  partner  who  bor- 
rowed it  was  apparently  clothed  with  authority  to  borrow 
money  for  the  firm  I  may  recover  from  the  firm,  even  though 
the  money  was  not  applied  to  the  firm's  use.  If  I  know,  or 
have  opportunity  to  know,  that  a  partner  who  borrows  money 
for  his  own  use  and  gives  me  a  note  in  the  name  of  the  firm, 
is  exceeding  his  authority,  I  will  probably  lose  the  money,  un 
less  the  borrower  is  individually  good,  for  the  firm  can  not  be 
held  on  the  note. 

A  purchase  or  a  sale  by  one  partner  binds  all  the  others, 
no  matter  what  fraudulent  intentions  the  partner  may  have 
had,  unless  it  can  be  shown  that  there  was  collusion  between 
the  partner  and  the  third  party,  seller  or  buyer.  The  power 
of  one  partner  to  sell  is  confined,  however,  to  personal  effects. 
A  partner  can  not  mortgage  or  sell  real  estate  in  his  own 
name.  The  act  of  a  partner  must  be  within  the  scope  of  the 
business  of  the  firm  in  order  to  bind  the  firm  ;  or  it  must  arise 
out  of  and  be  connected  with  their  usual  business.  But  the 
act  of  one  partner  in  outside  matters  will  bind  all  if  it  receives 
the  firm's  or  all  the  partners'  sanction  and  confirmation. 

If  a  firm  owe  a  debt  a  partner  may  bind  the  firm  for  that 


PARTNERSHIP.  405 

debt  by  giving  a  partnership  note,  even  against  the  wishes  of 
the  other  partners. 

A  person  who  buys  partnership  property  from  a  partner, 
knowing  it  to  be  a  fraud  upon  the  firm,  may  be  held  to  be  a 
trustee  for  the  firm. 

A  release  by  one  partner  is  a  release  by  all.  A  release  to 
one  partner  is  a  release  to  all. 

The  signature  or  acknowledgment  of  one  partner,  in  part- 
nership matters,  binds  the  firm. 

A  notice  to  one  partner  is  notice  to  all. 

An  incoming  partner  is  not  presumed  to  be  liable  for  old 
debts,  but  may  be  shown  to  have  assumed  them.  But  if  a 
person  succeeds  to  the  interest  of  a  retiring  partner  and  con- 
tinues to  transact  the  business  as  before  with  the  other  mem- 
bers, he  "becomes  a  member  under  the  original  articles  of 
partnership,  unless  there  is  positive  evidence  to  prove  the 
contrary. 

It  is  not  positively  determined  whether  the  majority  of  the 
partners  can  bind  the  minority  against  their  will.  The  de- 
cisions in  favor  of  this  position  usually  limit  the  exercise  of 
this  power  to  matters  of  minor  importance,  or  to  the  internal 
concerns  of  the  firm.  The  just  rule  will  probably  be  found  to 
draw  a  distinction  between  partnerships  made  by  articles  and 
not  determinable  at  the  pleasure  of  the  partners  and  partner- 
ships that  may  be  dissolved  at  any  time  by  mutual  consent.  The 
majority  should  not  be  permitted  to  govern  in  the  former 
class  because  the  minority  would  be  left  absolutely  without 
remedy,  and  could  not  even  escape  by  dissolution.  But  in  the 
latter  class  where  a  dissenting  partner  may  dissolve  the  part- 
nership at  will  the  majority  should  govern. 

Dissolution  of  partnership  does  not  affect  the  liability  of 
partners  for  former  debts,  but  it  prevents  the  incurring  of  any 
new  partnership  liability.     If  a  partnership  is  made  for  a  time 


406  THE    LAW   OF   BUSINESS. 

certain  and  one  of  the  partners  dissolve  it  before  the  expira- 
tion of  that  time,  the  other  may  maintain  an  action  against 
him  for  damages,  the  measure  of  which  will  be  the  profits 
that  would  have  accrued  to  the  plaintiff  from  a  continuance  of 
the  partnership  business  to  the  end  of  the  time.  If  a  partner- 
ship is  not  to  endure  for  a  time  certain  it  may  be  dissolved  at 
any  time  by  either  partner.  It  should  be  done  with  due 
notice  to  other  partners,  and  at  such  time  as  not  to  cause 
damage  or  injury,  and  without  fraud  —  the  law  would  not 
sanction  a  fraud. 

Death  of  any  partner  dissolves  the  partnership.  In  Eng- 
land civil  death,  as  attainder  for  treason  or  felony,  would  have 
the  same  effect  but  not  in  this  country. 

Bankruptcy  of  the  firm  or  of  one  partner  dissolves  the 
firm  at  once. 

After  a  dissolution  no  partner  has  a  right  to  bind  his 
former  partners  by  any  new  contract.  When  a  partner  dies 
the  partnership  property  goes  to  the  other  members  of  the 
firm  for  the  purposes  of  settlement.  They  have  all  the  power 
necessary  for  this  particular  purpose  and  no  more. 

Limited  Partnership. — Limited  partnership  is  a  modern 
innovation  and  purely  the  creature  of  statutory  enactment. 
It  may  be  defined  as  a  partnership  in  which  one  or  more  of 
the  members  put  money  into  the  stock  of  the  firm  and  incur 
responsibility  and  share  profits  in  the  proportion  to  the  money 
thus  invested,  and  no  more.  It  differs  from  common  law 
partnership  in  this  that  there  every  partner  is  liable  for  the 
whole  debts  of  the  firm.  The  States  have  nearly  all  adopted 
legislation  providing  for  limited  partnerships,  and  they  are  in 
many  cases  very  useful,  enabling  men  of  business  capacity 
who  have  only  energy,  skill,  industry  and  integrity,  to  secure 
capital  necessary  to  carry  on  a  business  profitably.  Under 
the  old  plan  the  capitalist  would  not,  in  many  instances,  as- 


ASSIGNMENTS.  407 

sume  the  great  risk  of  investing  money  in  a  partnership, 
against  another  man's  labor  and  skill,  because  considerable  in- 
debtedness might  be  incurred  and  he  would  be  liable  for  the 
whole. 

The  general  provisions  of  these  statutes,  which  differ  con- 
siderably in  the  different  States,  are  as  follows:  1.  There 
must  be  one  or  more  who  are  genera/  partners,  and  one  or 
more  who  are  special  partners.  2.  The  special  partners  have 
not  all  the  powers  and  duties  of  active  partners,  nor  do  their 
names  appear  in  the  firm.  3.  The  special  partners  must  actu- 
ally pay  in  the  sum  proposed  to  be  contributed  by  them.  4. 
The  agreement  must  be  in  writing,  setting  forth  the  amount 
paid  in,  the  names  of  the  partners,  and  other  particulars,  and 
must  be  acknowledged  before  a  magistrate  or  notary,  and  then 
recorded  and  advertised,  so  as  to  give  the  public  distinct 
knowledge  of  the  whole  arrangement,  whom  they  are  dealing 
with,  the  exact  liability  of  each  one,  and  to  whom  credit  is  given. 

A  special  partner  in  a  limited  partnership  must  comply 
strictly  with  the  requirements  of  the  statute  in  order  to  re- 
lieve himself  of  liability  for  the  firm's  debts.  Any  disregard 
of  the  law,  or  any  mistake,  even  a  mistake  of  the  printer  who 
prints  the  advertisement,  of  which  he  is  entirely  innocent, 
will  deprive  him  of  the  benefit  of  the  statute.  He  then  be- 
comes a  partner  at  common  law  and  liable  in  solido  for  the 
whole  debts  of  the  firm. 

ASSIGNMENTS. 

An  assignment  is  the  transfer  by  writing  of  the  whole  of 
any  property,  real  or  personal,  in  possession  or  in  action,  or  of 
any  estate,  right,  title  or  interest  therein.  All  the  property 
that  a  man  can  possess  is  assignable.  An  instrument  is  now 
assigned  by  writing  the  following  across  the  face  of  it :  "I 
hereby  assign,  transfer  and  set  over  to  E.  H.  Baker,  all  my 


408  THE    LAW   OF    BUSINESS. 

right,  title  and  interest,  in  and  to  the  within  document.     W. 
M.  Tugman." 

GENERAL   FORM   OF   ASSIGNMENT. 

Know  all  Men  by  these  Presents,  That  I,  John 
S.  Andrews,  for  value  received,  by  these  presents  do  assign, 
transfer,  and  set  over  unto  L,.  K.  Torbet  {here  describe  things 
assigned}. 

To  have  and  TO  hold  the  same  unto  the  said  L,.  K.  Tor- 
bet,  his  executors,  administrators  and  assigns,  forever,  to  and 
for  the  use  of  my  wife,  Tillie  Andrews,  hereby  constituting 
and  appointing  said  L,.  K.  Torbet,  my  true  and  lawful  attor- 
ney irrevocably,  in  my  name,  place  and  stead,  for  the  purposes 
aforesaid,  to  ask,  demand,  sue  for,  attach,  levy,  recover  and  re- 
ceive all  such  sums  of  money  which  now  are,  or  may  hereafter 
become  due,  owing  and  payable  for,  or  on  account  of,  all  or 
any  of  the  accounts,  dues,  debts  and  demands  above  assigned 
to  him  giving  and  granting  unto  the  said  attorney  full  power 
and  authority  to  do  and  perform  all  and  every  act  and  thing 
whatsoever  requisite  and  necessary,  as  fully,  to  all  intents  and 
purposes  as  I  might,  or  could  do  if  personally  present,  with 
full  power  of  substitution  and  revocation,  hereby  ratifying 
and  confirming  all  that  the  said  attorney  or  his  substitute 
shall  lawfully  do  or  cause  to  be  done  by  virtue  hereof. 

In  Witness  Whereof,  I  have  hereunto  set  my  hand  and 
seal  the  20th  day  of  September,  A.  D.  1889. 

JOHN  S.  ANDREWS. 

Executed  and  delivered  in  the 
presence  of  J.  R.  P.  Brown. 

A  note  or  check  is  assigned  simply  by  writing  the  name 
of  the  payee  on  the  back,  and  this  endorsement  is  a  warranty 
of  the  validity  of  the  paper. 


assignment  deed.  409 

form  of  assignment  deed  for  creditors. 

Know  all  Men  by  these  Presents:  That  VVhi-k 
John  Brennan,  of  Hamilton  County  and  State  of  Ohio,  is  In- 
debted to  divers  persons  in  various  sums  of  money,  which  he 
is  now  unable  to  pay  in  full,  and  whereas,  he  is  desirous  to 
convey  all  his  property  for  the  benefit  of  his  creditors,  without 
any  preference  or  priority. 

Now,  Therefore,  I,  the  said  John  Brennan,  in  consider- 
ation of  the  premises,  and  of  one  dollar  to  me  paid  by  John 
Wentzel,  the  receipt  of  which  I  hereby  acknowledge,  have 
granted,  bargained,  sold,  assigned,  transferred,  and  set-over, 
and  by  these  presents  do  grant,  bargain,  sell,  assign,  transfer, 
and  set-over  unto  said  John  Wentzel,  all  and  singular  the 
lands,  tenements,  hereditaments  and  appurtenances,  goods, 
chattels,  stocks,  promissory  notes,  debts,  choses  in  action,  evi- 
dences of  debt,  claims,  demands,  property  and  effects,  of  every 
description,  belonging  to  me,  wherever  the  same  may  be  situ- 
ated, except  such  property  as  is  by  law  exempt  from  execu- 
tion; to  have  and  to  hold  the  same  unto  said  John  Wentzel,  in 
trust,  to  sell  and  dispose  of  the  said  real  and  personal  property, 
and  to  collect,  sue  for,  and  demand,  receive  and  recover  all 
such  sums  of  money  as  may  be  or  become  due,  owing,  and 
payable  on  said  promissory  notes,  debts,  choses  in  action,  evi- 
dences of  debt,  claims  and  demands,  and  then  in  trust  to  apply 
the  proceeds  arising  from  the  same  as  follows : 

FIRST.  To  pay  the  lawful  costs  and  expenses  of  executing 
the  trust  hereby  created,  including  reasonable  attorney's  fees 
for  legal  advice  in  regard  to  the  formation  of  the  trust,  and 
for  drawing  this  deed  of  trust. 

SECOND.  To  pay  to  each  and  all  of  my  creditors  the  full 
sums  that  may  be  due  and  owing  to  them  from  me ;  provided, 
however,  that  if  there  shall  not  be  sufficient  funds  with  which 


410  THE   LAW   OE  BUSINESS. 

to  pay  all  my  said  debts,  then  the  said  debts  are  to  be  paid 
ratably  and  in  proportion. 

THIRD.  If  the  proceeds  as  aforesaid  shall  be  more  than 
sufficient  to  pay  and  satisfy  every  one  of  my  creditors,  then  to 
pay  and  return  to  me  the  balance  that  may  be  left,  if  any,  after 
paying  all  my  creditors  as  aforesaid. 

And  I  do  hereby  nominate,  constitute,  and  appoint  the 
said  John  Wentzel  my  true  and  lawful  attorney,  irrevocable, 
in  my  name  or  otherwise;  for  the  purpose  aforesaid,  to  execute 
the  trust  hereby  created ;  giving  and  granting  unto  him,  said 
attorney,  full  power  and  authority  to  do  and  perform  every  act, 
deed,  and  thing  requisite  and  necessary  in  the  premises,  as 
fully  to  all  intents  and  purposes,  as  I  might  or  could  do,  if  this 
assignment  had  not  been  made ;  with  full  power  of  substitu- 
tion and  revocation,  hereby  ratifying  and  confirming  all  that 
he,  the  said  attorney,  or  his  substitute  may  lawfully  do,  or 
cause  to  be  done,  in  the  premises  by  virtue  hereof. 

In  Witness  Whereof,  I  have  hereunto  set  my  hand  and 
seal,  this  20th  day  of  September,  in  the  year  of  our  Lord  one 
thousand  eight  hundred  and  eighty-nine. 

JOHN  BRENNAN.  [seal.] 

Signed,  sealed  and  acknowledged,  in  presence  of  us: 
HARRY  t.  COOPER. 
EDWARD  FLAIGE. 

This  deed  must  be  acknowledged  before  a  Notary  same  as 
an  ordinary  deed. 

ACCEPTANCE  BY  ASSIGNEE. 
v 
I    hereby   accept   the   trust  created   by  the  above  instru- 
ment, and  agree  to  faithfully  perform  the  same. 

JOHN  WENTZEL,. 
Done  at  Cincinnati,   this   20th  day  of  September,  A.   D. 
1889. 


UKN'S. 


41* 


UENS. 

A  lien  is  a  legal  claim  or  charge  upon  real  or  personal 
property  for  the  satisfaction  of  some  debt  or  duty.  It  is  a 
right  in  one  to  hold  the  property  of  another  until  some  claim 
of  the  former  is  paid  or  satisfied. 

If  the  lien  is  on  personal  property  a  requisite  is  the  lawful 
possession  of  the  property  by  the  person  who  claims  the  lien. 
If  he  voluntarily  part  with  possession  he  loses  his  lien. 

Carriers  have  a  lien  on  goods  for  the  carrying  charges. 

Attorneys  have  a  lien  on  all  the  papers  in  a  case  for  their 
fees. 

Vendors  have  a  lien  on  goods  sold,  and  not  delivered,  for 
their  pay.  Seamen  have  a  lien  on  freight  and  vessel  for  their 
wages.  But  sailors  in  the  government  employ  have  no  lien 
on  government  vessels. 

Pawnees  have  a  lien  on  goods  pawned  where  the  pawnor 
has  authority  to  pledge,  but  not  otherwise. 

Mechanics,  laboring  men,  and  furnishers  of  material,  have 
a  lien  on  real  estate  improved  by  such  labor  or  material.  This 
class  of  liens  is  controlled  in  all  the  States  by  statute  and  as 
the  law  in  each  State  must  be  strictly  complied  with  we  ap- 
pend an  abstract  of  the  lien  laws  of  the  States.  It  may  be 
laid  down  as  a  general  rule  that  the  claim  must  be  filed  in 
*ome  public  office  with  notice  of  the  intention  to  hold  the 
property  for  the  labor  performed  or  material  furnished.  Also 
that  it  does  not  matter  whether  the  claim  is  for  the  erection. 
alteration  or  repair  of  a  building,  the  laborer  has  a  lien,  and 
generally  on  both  the  building  erected  and  on  the  real  estate  or 
ground  upon  which  it  stands,  as  they  become  inseparable  after 
erection. 

Alabama.— Original  contractor  must  file  claim  in  probate 
court  within  six  months ;  workmen  in  thirty  days,  from  last 
work  done.     Suit  must  be  brought  in  ninety  days. 


412  THE    LAW   OF   BUSINESS. 

Arizona. — Notice  under  oath  must  be  filed  within  ninety 
days  in  recorder's  office  with  account  of  demand  due.  A  sub- 
contractor must  file  his  claim  within  sixty  days  from  comple- 
tion of  work.  Suit  must  be  brought  within  six  mouths,  and 
no  lien  is  continued  in  force  longer  than  two  years. 

Arkansas. — Account  must  be  filed  in  circuit  court  in 
three  months  and  suit  commenced  in  nine  months  thereafter. 

California. — Lien  is  on  buildings.  Claim  must  be  filed 
in  thirty  days  by  sub-contractor,  or  laborer,  and  sixty  by  orig- 
inal contractor  and  suit  must  be  brought  in  three  months 
from  filing  claim. 

Colorado. — Lien  is  allowed  where  claim  exceeds  twenty- 
five  dollars.  Principal  contractors  have  forty  days,  sub-con- 
tractors twenty  days  to  file  claims,  and  suit  must  be  commenced 
in  six  months  after  filing. 

Connecticut. — Claim  must  exceed  twenty-five  dollars, 
and  be  filed  in  sixty  days.  Leins  extend  to  railroads.  Also 
to  vessels  if  claim  filed  in  ten  days. 

Dakota. — Notice  with  claim  must  be  filed  in  ninety  days 
with  affidavit.  If  other  collateral  security  is  taken  lien  will 
not  be  allowed. 

Delaware. — Claims  must  exceed  twenty-five  dollars  and 
be  filed  within  six  months. 

Florida. — Lien  is  not  allowed  unless  contracts  under 
which  labor  was  performed  or  material  furnished  are  in  writ- 
ing and  recorded.  Claim  must  be  filed  in  six  months  and 
suit  brought  in  twelve  months  from  completion  of  work. 
Liens  extend  to  crops. 

Georgia. — Lien  must  be  recorded  in  clerk's  office  in 
thirty  days  and  suit  brought  in  twelve  months. 

Idaho. — Notice  with  account  and  affidavit  must  be  filed  in 
recorder's  office  in  sixty  days  and  suit  brought  in  six  months. 
Liens  extend  to  mines,  ledges,  claims  and  quartz  lodes. 


LIENS.  413 

Illinois.— Suit  must  be  brought  in  six  months  from  com- 
pletion of  work. 

Indiana.— Notice  must  be  filed  in  sixty  days  and  suit 
brought  in  one  year. 

Iowa. — Claim  must  be  filed  in  ninety  days  and  suit  begun 
in  two  years. 

Kansas. — Claims  must  be  filed  in  Circuit  Court  in  four 
months  and  suit  brought  in  one  year.  Sub-contractors  must 
file  claim  in  sixty  days. 

Kentucky. — Claim  must  be  filed  in  sixty  days  and  suit  be 
brought  in  six  months.  Laborers  and  sub-contractors  must 
give  written  notice  to  the  owner  that  they  intend  to  take  ad- 
vantage of  the  lien  law. 

Louisiana. — Liens  are  called  privileges  in  this  State. 
They  must  be  recorded.  A  seller  also  has  a  lien  on  the  prop- 
erty sold  for  the  payment  of  the  price. 

Maine. — Liens  must  be  enforced  by  suit  brought  within 
ninety  days.  Boat  builders  have  lien  on  vessel,  and  lumber- 
men on  logs  handled. 

Maryland. — Lien  on  building  to  extent  of  one-fourth  of 
its  value;  also  on  machines  or  vessels.  Claim  must  be  filed  in 
Circuit  Court  of  the  county  or  Superior  Court  of  Baltimore ; 
lien  expires  in  five  years  and  on  vessels  in  two  years.  The 
counties  of  Kent,  Calvert,  Charles  and  St.  Mary's  are  exempt 
from  the  lien  law  except  as  to  boats  and  vessels. 

Massachusetts. — Claim  must  be  filed  in  thirty  days  and 
suit  brought  in  ninety  days.  If  owner  of  property  is  not  a 
party  to  the  contract  lien  for  materials  will  not  attach  unless 
owner  is  given  previous  notification  in  writing. 

Michigan. — Copy  of  contract  must  be  filed  with  renter 
of  deeds  before  lien  will  attach.  Suit  must  be  brought  in 
Chancery  in  six  months  from  the  time  the  debt  becomes  due 
or  lien  ceases.  Suit  may  be  brought  against  owner  and  con- 
tractor jointly. 


414  THE    LAW   OF    BUSINESS. 

Minnesota. — Lien  on  building  and  land — not  exeeding 
forty  acres  in  country  or  half  acre  in  city  or  village.  Account 
to  be  filed  with,  register  of  deeds  in  one  year  and  suit  brought 
in  two  years  or  lien  expires. 

Mississippi. — Lien  must  be  enforced  by  suit  in  Chancery 
filed  within  six  months.  Lien  takes  effect  upon  filing  con- 
tract in  Court  of  Chancery. 

Missouri. — Original  contractors'  claims  must  be  filed  in 
clerk's  office  of  Circuit  Court  in  six  months ;  mechanics'  and 
laborers'  in  thirty  days.  Suit  must  be  commenced  in  ninety 
days  after  filing. 

Montana. — Liens  extend  to  ranches,  mining  claims, 
quartz  lodes,  and  are  on  improvements  and  land.  Claim  must 
be  filed  with  recorder  in  thirty  days  by  sub-contractors,  and 
all  others  in  sixty  days.  Ranchmen  have  a  lien  on  cattle  or 
stock  pastured,  herded  or  fed  for  another  for  the  pay. 

Nebraska. — Account  must  be  filed  in  county  clerk's  office 
in  four  months.  Lien  is  valid  from  date  of  first  item  to  two 
years  after  date  of  last  item. 

Nevada. — Original  contractors  must  record  lien  in  sixty 
days;  all  others  in  thirty  days.  Lien  expires  in  six  months 
thereafter  unless  suit  is  brought.  If  claim  does  not  exceed 
twenty-five  dollars  no  lien  is  allowed. 

New  Hampshire. — Liens  run  for  ninety  days  and  take 
precedence  of  all  attachments.  They  extend  to  lumber  which 
laborers  may  be  cutting.  Laborers  on  vessels  have  a  lien  en- 
forceable by  attachment  which  runs  four  days  after  vessel  is 
completed. 

New  Jersey. — Claim  must  be  filed  and  suit  brought  within 
one  year.  If  the  contract  for  the  building  is  duly  filed  only 
the  contractor  has  a  lien. 

New  Mexico. — Liens  extend  to  mining  claims,  railroads 
and  other  structures.     Original  contractors  must  file  claim  in 


UENS.  4,; 

ninety  days  and  all  others  in  sixty  days,  verified  upon  oath. 
with  county  recorder.  Suit  must  be  brought  in  one  year,  and 
no  lien  continues  in  force  longer  than  two  years. 

New  York.— Claim  must  be  filed  in  sixty  days  and  suit 
brought  in  one  year. 

North  Carolina. — Liens  are  allowed  on  building  and 
land  and  also  on  personal  property  repaired  or  made. 

Ohio. — Lien  is  on  all  property  erected  or  repaired,  and  on 
real  estate.  Claim,  with  full  statement  of  account  and  all 
offsets,  must  be  filed  in  office  of  county  recorder  in  thirty  days 
after  the  expiration  of  three  months  from  the  completion  of 
the  work.  Suit  must  be  brought  in  one  year  from  filing  of 
claim,  otherwise  lien  will  be  deemed  to  be  waived.  After  fil- 
ing of  suit  lien  runs  until  it  is  finally  adjudicated. 

Oregon. — Amount  of  claim  must  exceed  twenty  dollars 
and  claim  must  be  filed  in  three  months  and  suit  brought  in 
one  year. 

Pennsylvania. — Claim  must  be  filed  in  court  of  Common 
Pleas  in  six  months  and  is  valid  for  five  years.  Mechanics 
laboring  in  a  factory  have  a  lien  upon  the  manufactory  foi 
wages  not  exceeding  two  hundred  dollars. 

Rhode  Island. — Claim  must  be  filed  with  town  clerk  and 
suit  brought  upon  the  same  in  four  months. 

South  Carolina. — Claim  must  be  filed  in  thirty  days  and 
suit  brought  in  ninety  days.  If  the  owner  is  not  a  party  to 
the  contract  a  lien  for  materials  will  not  be  allowed  unless 
written  notice  is  given  him. 

Tennessee. — Sub-contractors  and  laborers  must  notify 
owner  before  commencing  work  if  they  intend  to  claim  a  lien. 
Lien  is  good  one  year.  Will  take  precedence  of  mortgn 
contract  for  work  has  been  made  with  morgagor  with  mort- 
gagee's consent.  Landlords  have  a  lien  on  crops  for  rent,  and 
on  growing  crops  for  necessaries  supplied. 


416  THE   LAW   OF   BUSINESS. 

Texas. — Contract  for  work  must  be  in  writing  and  re- 
corded in  six  months  in  order  to  give  lien.  Landlords  have  a 
lien  for  necessaries  supplied  a  tenant  to  enable  him  to  raise  a 
crop. 

Utah. — Claim  and  notice  must  be  filed  with  the  recorder 
in  three  months.  Suit  must  be  commenced  in  one  year  from 
completion  of  work.  Lien  holder  has  lien  upon  building  and 
right  of  possession  of  the  ground. 

Virginia. — Lien  is  on  both  building  and  ground. 

Washington  Territory. — Claim  must  be  filed  in  sixty 
days  with  county  auditor,  verified  by  affidavit. 

West  Virginia. — Account  and  description  of  property 
must  be  filed  with  clerk  of  County  Court  in  thirty  days.  Suit 
must  be  brought  in  Chancery  in  six  months. 

Wisconsin. — Lien  covers  building  and  ground,  but  not 
more  than  forty  acres  in  the  country. 

Wyoming. — Claim  must  be  filed  with  register  of  deeds  in 
sixty  days  and  suit  must  be  brought  in  one  year  thereafter. 

Province  of  Quebec. — The  lien  is  on  the  additional 
value  resulting  from  the  work.  An  official  statement  must  be 
made  by  an  expert  of  the  state  of  the  premises  before  work 
commences,  and  in  six  months  after  completion  the  work 
must  be  accepted  by  another  expert,  both  experts  to  be  ap- 
pointed by  the  court. 

Province  of  Ontario. — Lien  extends  to  the  owner's 
interests  in  both  buildings  and  land.  Lien  must  be  recorded 
in  county  register's  office  in  one  month  after  completion  of 
work. 

Nova  Scotia. — The  contract  for  work  must  be  in  writing 
and  it  and  claim  must  be  duly  registered  in  thirty  days.  Suit 
must  be  brought  in  ninety  days  after  registry. 


MECHANICS'    LIEN.  4I7 

FORM  OF  MECHANICS'  UEN. 

Cincinnati,  Ohio,  September  21,  1889. 
I  hereby  certify  that  the  following  is  a  just  and  true  ac- 
count, with  all  just  credits  given,  of  the  amount  due  me  for 
labor  performed  {or  "  materials  furnished  ana 'actually  «.«■• 
in  the  erection  {or  "alteration  "  or  "  repair  ")  of  a  building  on 
a  lot  of  land  in  Cincinnati,  Hamilton  County  and  State  of 
Ohio,  which  lot  is  described  as  follows:  {here  describe  so  as  to 
identify?)  said  lot  of  land  being  owned,  to  the  best  of  my 
knowledge  and  belief,  by  \V.  C.  Poole. 

ACCOUNT. 

W.  C.  POOLE,  Dr. 
To  ALEXANDER  SUTHERLAND. 


I  further  certify  that  I  ceased  to  perform  labor  on  {or 
"furnish  labor  for"  or  "furnish  materials  for" )  said  building 
on  the  30th  day  of  June,  1889,  and  that  I  hereby  claim  a  lien 
upon  said  building,  and  upon  the  interest  of  the  owner  thereof. 
in  the  lot  of  land  upon  which  it  stands,  to  secure  the  payment 
of  the  debt  due  me  as  aforesaid,  and  of  the  costs  which  may- 
arise  in  enforcing  said  lien. 

And  I  further  certify  that  there  are  no  further  credits  or 
offsets  against  said  claim  than  those  set  forth  in  above  account 

ALEXANDER  SUTHERLAND. 


27 


41 8  THE    LAW   OF   BUSINESS. 

State  of  Ohio, 


Hamilton  County, 

Personally  appeared  before  me  a  Notary  Public  in  and  for 
Hamilton  County,  Ohio,  the  above  named  Alexander  Suther- 
land and  made  oath  that  the  foregoing  statement  and  account 
subscribed  by  him  is  true. 

ELLIS  B.  GREGG, 
Notary  Public,  Hamilton  Co.,  O. 

It  is  not  necessary  in  all  the  States  to  describe  the  land  on 
which  the  building  or  improvement  stands,  but  it  is  always 
well  to  do  so.  The  form  given  above  will  be  found  sufficient, 
we  believe,  for  any  State  in  the  Union. 


CHAPTER  IV. 

MARRIAGE   AND    DIVORCE. 

MARRIAGE  is  the  most  important  institution  of  human 
society.  It  is  the  essential  condition  precedent  to 
the  maintenance  of  the  family ;  and  the  family  is  the 
basis  of  our  government,  contributing  to  the  strength 
and  support  of  all  civilizing  and  moralizing  institutions,  and 
providing  an  impregnable  bulwark  against  the  vicious  in- 
fluences that  degrade  man's  nature,  cultivate  passion  and  en- 
courage  lust.  Marriage  thus  involves  the  dearest  and  most 
valued'  interests  of  all  classes,  aud  a  brief  exposition  of  the 
nature  of  marriage,  the  duties  and  obligations  it  imposes,  t he- 
laws  governing  it,  and  methods  of  dissolving  it,  will  be  of 
value  and  interest  to  the  general  public. 

MARRIAGE. 

There  has  long  existed  not  only  in  the  public  mind,  but  in 
judicial  opinions  and  decisions  much  confusion  as  to  what 
marriage  really  is.  In  order  to  arrive  at  a  clear  understanding 
of  this,  let  us  trace  the  steps  that  lead  to  the  married  state. 
First  there  is  the  contract  to  marry.  This  can  be  entered 
into  only  by  a  man  and  a  woman  legally  capable  of  intermarry- 
ing. But  this  contract  to  marry  is  not  marriage.  It  is  like- 
any  ordinary  contract.  The  parties  must  be  competent,  in 
order  for  an  action  for  damages  to  lie  for  failure  to  perform 
the  contract,  although  a  person  who  is  already  married  or 
otherwise  incapable  of  marrying  may  l>e  sued  for  damages  by 
another  to  whom  he  has  made  the  promise  to  marry  unlaw- 
fully. It  must  be  based  upon  a  consideration,  but  this  ron-id- 
eration  usually  consists  of  mutual  promises.     Fraud  or  mistake, 

419 


420  THE   LAW   OF   BUSINESS. 

as  concealing  unchastity,  will  justify  breaking  the  contract. 
A  contract  to  marry  between  an  infant  and  an  adult  is  binding 
on  the  adult  and  voidable  by  the  infant.  If  one  becomes 
physically  incapable  of  performing  the  functions  of  marriage 
by  the  "act  of  God"  after  the  promise  is  made  the  other  may 
withdraw  from  the  promise.  An  action  for  damages  lies  for  a 
breach  of  this  contract  like  any  other,  and  the  contract  is 
ended  by  pertormance  or  the  act  of  marrying  legally  per- 
formed. Performance  of  this  contract  is  actual  marriage,  by 
which  the  parties  become,  in  law,  man  and  wife.  Nothing 
short  of  this  is  performance. 

The  next  step  after  the  contract  to  marry  is  the  act  of  be 
coming  married — the  legal  formalities  by  which  the  parties 
become  man  and  wife.     But  this  is  not  marriage.     It  is  the 
door  through  which  the  parties  enter  into  the  marriage  state. 

Marriage  Defined. — Marriage,  then,  as  distinguished  from 
the  agreement  to  marry,  and  from  the  act  of  becoming  mar- 
ried, is  the  civil  status  of  one  man  and  one  woman  united  in 
law  for  life,  for  the  discharge,  to  each  other  and  the  com- 
munity, of  the  duties  legally  incumbent  on  those  whose  asso- 
ciation is  founded  on  the  distinction  of  sex.  This  is  Bishop's 
definition,  which  is  now  generally  accepted  as  correct  in  this 
country. 

It  will  be  observed  that  this  definition  does  not  state  that 
marriage  is  a  contract.  The  fact  is,  marriage  is  not  a  con- 
tract ;  it  is  a  state  or  condition.  True,  it  has  been  defined  as 
a  contract  by  courts  and  writers  from  time  immemorial,  and 
still  while  defined  as  a  contract  it  has  not  been  treated  accord- 
ing to  the  laws  and  principles  of  contracts.  While  the  con- 
sent of  the  parties  is  necessary  to  the  preliminary  contract  to 
marry  and  to  entering  into  the  marriage  status,  this  is  not  suf- 
ficient to  withdraw  from  the  state  when  once  assumed.  In 
fact,  the  rights,  obligations  and  duties  of  the  parties  are  not 


MARRIAGE. 


421 


entirely  regulated  by  themselves,  but  are,  to  a  great  extent, 
subject  to  legislative  regulation,  over  which  they  have  no 
control. 

The  Roman  Catholic  Church  holds  marriage  to  be  a  sacra- 
ment. Protestants  do  not  go  so  far,  but  consider  it  of  divine 
origin  and  invest  it  with  the  sanctions  of  religion. 

If  the  ideal  married  life  were  always  attained— if  neither 
married  partner  ever  deserted  the  other,  or  committed  adul- 
tery, of  beat  or  abused  the  other,  and  each  at  all  times  saeri 
need  self  and  did  everything  possible  for  the  happiness  and 
sustenance  of  the  other  and  the  entire  family,  then  both 
would  walk  the  flower-fringed  path  of  life  hand  in  hand,  np 
its  grassy  slopes  to  the  glory  of  full  manhood  and  woman- 
hood, and  down  its  mossy  declivities  to  the  ripeness  of  perfect 
old  age,  and  lie  down  together  to  sleep  the  sleep  of  the  just 
at  the  foot  of  the  hill,  conscious  of  having  accomplished  life's 
noblest  mission.  If  this  state  of  things  obtained  universally 
there  would  be  no  divorces,  no  divorce  courts,  and  no  treatises 
on  divorce  would  be  necessary. 

But,  alas,  in  marriage  as  in  other  relations  of  life,  men  and 
women  are  prone  to  err,  and  this  being  true  the  sentiment  of 
this  country  and  of  a  large  majority  of  the  civilized  world  is 
in  favor  of  the  courts  furnishing  redress  for  matrimonial 
wrongs  the  same  as  for  others.  Many  good  people,  however, 
think  that  this  class  of  wrongs  ought  to  be  different  from  all 
others  and  no  redress  permitted.  These  people  mostly  make 
their  opinion  a  matter  of  religious  faith,  holding,  in  effect. 
that  if  one  is  defrauded  of  the  value  of  a  cent  the  courts  should 
compel  restitution,  but  if  a  trust  which  embraces  all  that 
makes  life  worth  living  or  earth  endurable  is  violated  the 
courts  should  afford  no  relief. 

But  our  courts  do  afford  relief  from  the  ills  and  wrongs 
incident  to  married  life,  and  it  seems  but  just  and  right  in 
many  instances  that  they  should. 


422  THE    LAW    OF    BUSINESS. 

Subject  to  State  Laws. — The  State  courts  have  entire  juris- 
diction of  the  subjects  of  marriage  and  divorce  within  their 
respective  limits.  The  National  Government  controls  the 
subjects  entirely  in  the  District  of  Columbia  and  in  the  terri- 
tories. In  1850  Congress  provided  for  divorces  in  the  District 
of  Columbia,  and  as  early  as  1826  Congress  annulled  several 
acts  of  the  legislative  council  and  governor  of  the  Territory  of 
Florida  granting  divorces.  In  1862  Congress  passed  a  law 
punishing  polygamy  in  any  "Territory  or  other  place  over 
which  the  United  States  have  exclusive  jurisdiction."  In  i860 
Congress  provided  that  "all  marriages  in  the  presence  of  any 
consular  officer  in  a  foreign  country,  between  persons  who 
would  be  authorized  to  marry  if  residing  in  the  District  of 
Columbia,  shall  have  the  same  force  and  effect,  and  shall  be 
valid  to  all  intents  and  purposes  as  if  the  said  marriages  had 
been  solemnized  within  the  United  States." 

Consent. — A  prerequisite  to  valid  marriage  is  the  free  con- 
sent of  the  parties.  Third  parties  are  frequently  affected  in 
their  property  interests  by  a  marriage  and  then  it  becomes 
important  to  know  what  constitutes  a  valid  marriage — a  real 
marriage.  If  two  people  were  brought  together  by  force  and  an 
authorized  minister  or  justice  of  the  peace  were  to  pronounce 
the  necessary  marriage  ceremony  over  them,  this  would  not 
make  them  husband  and  wife. 

If  one  of  the  parties  is  insane,  that  party  can  not  give  con- 
sent, and  therefore  a  ceremony  performed  would  not  make  the 
parties  husband  and  wife,  and  would  not  take  rights  of  prop- 
erty from  third  persons. 

However,  a  Virginia  statute  is  as  follows:  "All  marriages 
between  a  white  person  and  a  negro,  and  all  marriages  which 
are  prohibited  by  law  on  account  of  either  of  the  parties  hav- 
ing a  former  wife  or  husband  then  living,  shall  be  absolutely 
void,  without  any  decree  of  divorce  or  other  legal  process. 


MARRIAGE.  ;- i 

All  marriages  which  are  prohibited  by  law  on  account  of  con- 
sanguinity or  affinity  between  the  parties,  all  marriages  sol- 
emnized when  either  of  the  parties  was  insane,  or  incapable 
from  physical  causes  of  entering  into  the  marriage  state,  shall, 
if  solemnized  within  this  State,  be  void  from  the  time  they 
shall  be  so  declared  by  a  decree  of  divorce  or  nullity,  or  from  the 
conviction  of  the  parties  under  the  third  section  of  the  one 
hundred  and  ninety-sixth  chapter." 

If  this  means  anything  it  means  that  a  marriage  with  an 
insane  person  is  good  until  dissolved.  It  is  difficult  to  believe 
that  any  body  of  sane  men  would  enact  so  unjust,  vicious  and 
iniquitous  a  statute,  but  there  it  is.  Let  us  see  the  results : 
Suppose  a  woman  is  insane.  In  this  condition,  by  some  trick 
often  easily  accomplished,  an  adventurer  has  a  marriage  cere- 
mony performed  with  her.  Her  property  is  at  once  by  the 
marriage  transferred  to  him.  All  suits  pending  against  her 
are  abated,  and  she  can  not  be  used  as  witness  in  any  suit  that 
was  previously  pending  against  her  present  husband.  If  they 
live  long  enough  and  she  become  sane  enough  to  apply  for  it, 
a  divorce  may  be  procured.  But  even  then  the  marriage 
would  only  be  made  void  from  the  date  of  the  divorce,  not 
from  the  beginning,  and  all  the  evil  consequences  would  al- 
ready be  accomplished.  Did  the  legislature  contempl. 
grave  results  when  they  enacted  the  law  ? 

A  Massachusetts  statute  is  as  follows:  "Section  i.  All 
marriages  solemnized  within  this  State,  which  are  prohibited 
by  law  on  account  of  consanguinity  or  affinity  between  the 
parties,  or  on  account  of  either  of  them  having  a  former  wife 
or  husband  then  living,  or  when  either  party  was  insane  or  an 
idiot,  shall  be  void  without  any  decree  of  divorce  or  other  legal 
process.  Section  2.  The  validity  of  a  marriage  shall  not  be 
questioned  in  the  trial  of  a  collateral  issue,  on  account  of  the 
insanity  or  idiocy  of  either  party,  but  only  in  a  process  duly  in- 


424  THE   LAW   OF   BUSINESS. 

stituted  in  the  lifetime  of  both  parties  for  determining  such 
validity." 

Here  is  confusion  confounded.  Section  one  declares  the 
marriage  of  insane  or  idiotic  persons  absolutely  void ;  section 
two  of  the  same  act  declares  the  marriage  good  until  avoided 
in  the  lifetime  of  both  parties  ;  in  other  words  voidable. 

Wisconsin  had  a  similar  statute,  which  may  have  been 
modified :  "  When  either  of  the  parties  to  a  marriage,  for 
want  of  age  or  understanding,  shall  be  incapable  of  assenting 
thereto,  or  when  the  consent  of  either  party  shall  have  been 
obtained  by  force  or  fraud,  and  there  shall  have  been  no  sub- 
sequent voluntary  cohabitation  of  the  parties,  the  marriage 
shall  be  void  from  the  time  its  nullity  shall  be  declared  by  a 
court  of  competent  authority."  This  statute  is  more  wicked 
if  possible  than  the  Virginia  law.  If'  it  means  anything,  it 
means  that  people  may  be  married  without  their  consent.  We 
know  that  if  a  ruffian  robs  a  lady  on  the  highway,  of  her 
watch,  he  thereby  acquires  no  title  to  it,  but  by  this  statute  he 
may  throttle  her  and  hold  her  by  brute  force  until  a  confede- 
rate magistrate  pronounce  the  marriage  ceremony  and  thus 
becomes  legally  invested  with  all  her  personal  property.  She 
must  be  regarded  as  his  wife  until  she  can  bring  the  scoundrel 
into  court  and  prove  her  want  of  consent.  Can  any  one  con- 
ceive of  anything  more  brutal,  more  revolting  to  all  ideas  of 
justice,  humanity  and  right?  This  hideous  doctrine  origi- 
nated, we  believe,  in  New  York,  which  had  at  one  time  a 
similar  statute,  and  many  of  the  States  followed  in  her  wake. 
The  courts  have  gone  to  the  extreme  limit  in  the  interpreta- 
tion of  tnese  laws  to  preserve  the  property  rights  of  third 
parties  and  prevent  persons  from  being  held  by  law  as  married 
when  they  had  never  consented  to  matrimony  or  intended  it. 
A  Massachusetts  judge  said:  "If  it  would  be  hard  that  the 
issue  of  such  marriage  should  be  deemed  bastards,  it  would  be 


MARRIAGE.  425 

as  much  so  that  human  beings  without  reason,  or  their  fami- 
lies, should  be  the  victims  of  the  artifice  of  desperate  persons, 
who  might  be  willing  to  speculate  on  their  misfortunes." 

We  quote  these  statutes  to  show  the  confusion  that  has 
existed  in  the  minds  of  legislators  on  the  subject  of  marriage; 
we  say  confusion,  for  it  can  not  be  presumed  that  the  full 
legal  consequences  of  these  acts  were  foreseen  when  enacted; 
that  they  intended  to  place  legislation  so  vicious  upon  the 
statute  books. 

Void  and  Voidable. — In  general  "a  marriage  is  termed  void 
when  it  is  good  for  no  legal  purpose,  and  its  invalidity  may  be 
maintained  in  any  proceeding,  in  any  court,  between  any 
parties,  whether  in  the  lifetime  or  after  the  death  of  the  sup- 
posed husband  and  wife,  and  whether  the  question  arises  di- 
rectly or  collaterally." — Bishop. 

"A  marriage  is  voidable  when  in  its  constitution  there  is 
an  imperfection  which  can  be  inquired  into  only  during  life- 
time of  both  of  the  parties,  in  a  proceeding  carried  on  for  the 
purpose  of  obtaining  a  sentence  declaring  it  null.  Until  set 
aside,  it  is  practically  valid;  when  set  aside,  it  is  rendered  void 
from  the  beginning." — -Idem. 

Statutes  may  depart  from  or  alter  these  general  rules  of 
law  as  was  seen  in  those  quoted,  but  this  should  not  be  so. 

A  child  resulting  from  a  void  marriage  is  a  bastard. 

A  child  resulting  from  a  voidable  marriage  is  legitimate, 
but  if  the  marriage  is  set  aside  by  a  decree  of  nullity,  the 
child  becomes  illegitimate.  This  is  the  universal  unwritten 
law,  but  statutes  may  limit  this  doctrine. 

Elements  Constituting  Marriage. — The  elements  that  con- 
stitute a  valid  marriage  are:  1.  Mutual  Consent. — This  must 
be  free  from  force  or  fraud.  2.  Mental  Capacity. — This  must  be 
such  capacity  of  mind  as  is  required  in  the  parties  to  an  ordi- 
nary contract.     3.    Adequate  Age. — The  incapacity  of  youth 


426  THE    LAW   OF   BUSINESS. 

does  not  depend  upon  the  actual  number  of  years  attained, 
but  whether  the  party  has  attained  that  physical  maturity 
which  is  enabled  to  perform  the  functions  of  marriage.  Mere 
infancy  in  itself  is  no  disqualification.  It  is  possible  for  a  per- 
son to  have  arrived  at  the  age  of  twenty-one  or  even  older 
without  having  acquired  physical  capacity.  So  that  this  ele- 
ment of  age  is  really  embodied  in  the  next.  4.  Physical  Ca- 
pacity.— Impotent  persons,  of  whatever  age,  can  not  contract 
perfect  matrimony.  Impotence  is  a  disqualification  to  be 
proved  in  each  particular  case.  At  common  law  the  age  of 
puberty,  or  the  marriageable  age,  is  fixed  at  fourteen  in  males 
and  twelve  in  females.  The  reason  for  fixing  these  years  has 
been  differently  stated  by  various  writers.  Littleton  calls  it 
the  "age  of  discretion."  Ayliffe  calls  it  the  "age  of  persons 
which  the  law  has  deemed  capable  of  advice  and  understand- 
ing." But  Swinburne  has  much  more  fully  comprehended  the 
true  reason  in  the  following  language:  "The  reason  is,  that 
because  at  these  years  the  man  and  the  woman  are  not  only 
presumed  to  be  of  discretion  and  able  to  discern  betwixt  good 
and  evil,  and  what  is  for  their  profit  and  disprofit,  but  also  to 
have  natural  and  corporal  ability  to  perform  the  duty  of  mar- 
riage, and  in  that  respect  are  termed  piiberes,  as  it  were  plants, 
now  sending  forth  buds  and  flowers,  apparent  testimonies  of 
inward  sap,  and  immediate  messengers  of  approaching  fruit." 
This  common  law  rule  of  fourteen  and  twelve  years  orig- 
inated in  the  warm  and  luxurious  climate  of  Italy,  where  sex- 
ual development  is  much  more  rapid  than  in  colder  northern 
latitudes,  hence  the  rule  has  been  altered  in  many  States,  the 
age  of  consent  being  made  later  in  life.  The  only  effect  is  to 
substitute  the  statutory  years  for  the  common  law  years.  The 
North  Carolina  statute  says  "females  under  the  age  of  four- 
teen, and  males  under  the  age  of  sixteen  )^ears,  shall  be  inca- 
pable of  contracting  marriage."     The  Supreme  court  of  the 


MARRIAGE.  427 

State,  Pearson,  C.  J.,  delivering  the  opinion,  held  that  a  mar- 
riage of  persons  under  these  ages,  who  continued  their  cohab- 
itation after  the  ages  were  passed,  was  valid.  The  same  has 
been  held  in  Iowa,  which  has  a  statute  fixing  the  ages  of  con- 
sent at  eighteen  and  fourteen. 

Another  age  to  be  considered  is  seven.  A  marriage  be- 
tween parties  either  of  whom  is  under  seven  is  absolutely 
void.  If  both  parties  are  over  seven  and  under  the  age  of 
consent,  or  if  only  one  is  under  the  age  of  consent,  they  may 
contract  an  imperfect  or  voidable  marriage.  A  marriage  im- 
perfect in  this  respect  can  not  be  voided  or  annulled  until  the 
one  objecting  to  it  has  arrived  at  the  age  of  consent,  and  per- 
haps not  until  both  have  arrived  at  that  age.  There  is  a  case 
in  the  books  where  a  wife  aged  eleven  years  objected  to  the 
marriage.  The  husband  was  then  at  the  age  of  consent,  i.  e., 
over  fourteen.  He  married  another  woman  and  by  her  had  a 
child.  This  child  was  adjudged  a  bastard,  because  the  former 
marriage  continued  valid;  for  the  first  wife  when  she  dissented 
from  the  marriage  had  not  arrived  at  the  age  when  she  could 
dissent  and  the  first  marriage  could  not  formally  be  declared 
null.  A  case  occurred  in  New  York  in  which  a  man  married, 
in  form,  an  infant  girl  under  twelve  years  of  age.  She  at  once 
declared  her  ignorance  of  the  nature  and  consequences  of  the 
ceremony,  and  her  dissent.  Her  next  friend  brought  a  bill  be- 
fore Chancery  and  the  court  ordered  her  to  be  placed  under 
the  protection  of  the  court  as  a  ward  and  prohibited  the  man 
from  all  intercourse  or  correspondence  with  her  under  pain  of 
contempt.  This  plan  seems  just,  for  it  protects  the  girl  during 
her  inability  to  give  legal  assent  and  leaves  her  free  to  affirm 
the  marriage  when  she  arrives  at  the  age  of  consent. 

5.  Freedom. — Slaves  can  not  contract  a  valid  marriage. 
There  is  no  slavery  in  this  country  now,  but  the  consequences 
of  slave  marriages  still  continue.     When  slavery  existed  in 


428  THE   LAW   OF   BUSINESS. 

New  York  a  statute  provided  that  a  marriage  between  parties 
one  or  both  of  whom  were  slaves  was  valid,  and  their  children 
legitimate.  If  one  was  free  and  the  other  a  slave  the  children 
were  considered  the  free  and  legitimate  offspring  of  the  free 
one. 

Massachusetts  had  a  similar  law.  In  Connecticut  if  a  slave 
married  a  free  woman  with  his  master's  consent  he  was  eman- 
cipated. 

Marriage  and  slavery  have  always  been  considered  incon- 
sistent. "The  rights  and  duties  of  a  husband  are  incompatible 
with  a  state  of  slavery,"  says  Reeve. 

In  the  late  slave  States  a  more  logical  condition  of  the  law 
prevailed.  Slave  marriage  was  a  nullity.  Emancipation  has 
generally  been  held  to  make  a  previous  slave  marriage  valid, 
provided  the  parties  continued  to  live  and  cohabit  together 
and  thus  confirmed  it,  although  in  Kentucky,  whose  statutes 
require  a  formal  ceremony  to  make  a  marriage  good,  the  courts 
have  held  against  this  doctrine. 

6.  Formalities. — The  law  in  some  places  requires  certain 
formalities  to  be  performed.  The  rule  of  the  courts  in  deter- 
mining whether  a  marriage  performed  in  disregard  of  the 
statute  is  void  is  as  follows:  A  marriage  good  at  common  law 
is  good  notwithstanding  the  existence  of  any  statute  on  the 
subject,  unless  the  statute  contains  express  words  of  nullity. 

If  a  statute  forbids  the  solemnization  of  a  marriage  without 
a  license,  still  a  marriage  so  performed  is  good  unless  the  law 
expressly  say  that  it  is  void.  To  sum  this  matter  up  generally, 
nearly  all  these  statutory  provisions  are  directory.  They  pro- 
vide certain  forms  to  be  followed  by  the  officers  and  by  the 
parties,  and  frequently  impose  a  penalty  upon  officers  for  dis- 
regard of  their  provisions,  but  the  rule  of  law  is  that  whatever 
punishment  may  be  put  upon  the  officer  for  disregard  of  the 
statute,  even    if  he  should  be  sent  to   the  penitentiary   for 


MARRIAGE.  429 

life,  it  would  not  effect  the  validity  of  the  marriage,  unless 
the  law  expressly  states  that  the  marriage  is  void  on  account 
of  that  particular  dereliction  of  official  duty.  In  Ohio  a  min- 
ister or  magistrate  is  severely  fined  and  punished  for  perform- 
ing the  marriage  ceremony  for  parties  who  have  obtained  no 
license,  still  if  he  should  do  this,  taking  the  risk  of  punish- 
ment, the  marriage  would  be  valid. 

In  addition  to  these  elements  which  constitute  valid  mar- 
riage there  are  a  few  elements  the  presence  of  which  renders 
marriage  invalid  or  voidable:  1.  Fraud.  2.  Error.  3.  Duress. 
It  is  not  possible  in  this  brief  treatise  to  go  into  a  full  discus- 
sion of  this  intricate  subject,  but  we  sum  it  up  in  this:  the  au- 
thorities are  clear  to  the  general  conclusion  that  fraud,  error, 
or  duress  will,  when  of  the  required  sort  and  magnitude,  ren- 
der the  marriage  void  or  voidable. 

Marriage  good  where  celebrated  good  everywhere. — It  is  a 
rule  of  law  now  well  established  that  a  marriage  good  where 
celebrated  is  good  everywhere.  This  rule  will  never  be  con- 
strued, however,  by  courts  in  Christian  countries,  to  uphold 
bigamous,  polygamous,  or  incestuous  marriages. 

A  man  domiciled  in  Massachusetts  had  been  divorced  for 
his  adultery,  and  a  statute  of  the  State  disqualified  him,  being 
the  guilty  party,  from  remarrying.  To  avoid  this  he  and  the 
woman  whom  he  desired  to  marry  went  to  Connecticut  and 
were  married  and  immediately  returned,  and  the  Massachu- 
setts courts  held  the  marriage  valid. 

The  same  State  made  a  white  person  and  a  negro  incapable 
of  marrying  and  to  avoid  this  statute  a  white  person  and  negro 
went  to  Rhode  Island  and  were  married  and  returned,  and  the 
Massachusetts  courts  pronounced  this  marriage  valid.  Since 
that  Massachusetts  has  enacted  a  statute  which  prevents  such 
decisions,  as  follows:  "When  any  persons,  resident  in  this 
State,  shall  undertake  to  contract  a  marriage  contrary  to  the 


43©  THE    LAW   OF    BUSINESS. 

[provisions  of  the  statute],  and  shall,  in  order  to  evade  these 
provisions,  and  with  an  intention  of  returning  to  reside  in  this 
State,  go  into  another  State  or  country,  and  there  have  their 
marriage  solemnized,  and  shall  afterward  return  and  reside 
here,  such  marriage  shall  be  deemed  void  in  this  State." 

The  law  of  Kentucky  renders  a  nephew  and  his  uncle's 
widow  incompetent  to  marry.  Such  parties  domiciled  there, 
went  into  Tennessee  where  no  such  law  prevailed  and  were 
married  and  returned  to  Kentucky  to  live,  and  were  held  by 
the  Kentucky  courts  to  be  lawful  husband  and  wife. 

On  the  other  hand  comes  a  case  from  Virginia  whose  law 
makes  the  marriage  of  a  white  person  and  a  negro  void  with- 
out decree  of  divorce  or  other  legal  process.  A  white  person 
and  a  negro  to  avoid  this  statute,  both  being  residents  of  Vir- 
ginia, went  to  the  District  of  Columbia  and  were  married,  and 
returned  to  Virginia,  living  together  as  man  and  wife.  They 
were  arrested  upon  the  charge  of  fornication  or  illicit  cohabi 
tation.  This  case  was  carried,  we  believe,  to  the  Court  of 
Appeals,  which  affirmed  all  the  decisions  of  the  lower  courts 
that  the  marriage  was  an  attempted  fraud  upon  the  laws  of 
Virginia  and  void,  and  the  parties,  of  course,  guilty. 

The  law,  however,  seems  to  be  pretty  well  established  as 
stated  in  the  outset  of  this  subject. 

Likewise  a  marriage  invalid  where  celebrated  is  invalid 
everywhere.  An  exception  to  this,  and  the  only  one  worth 
mentioning,  is  the  case  in  which  the  parties  can  not  marry 
conformably  to  the  laws  of  the  place  where  they  are.  In  this 
case  if  they  can  marry  conformably  to  the  laws  of  their  own 
country  let  them  do  so  and  it  will  be  there  held  valid  though 
invalid  where  performed. 

Consequences  of  Invalid  Marriages. — The  consequences  of 
invalid  marriages  are  distinctly  of  two  kinds:  i.  Criminal. 
2.  Civil.     The  offense  of  having  two  wives  or  two  husbands 


MARRIAGE.  43 1 

at  the  same  time  is  usually  now  termed  bigamy,  although  the 
old  canonical  definition  of  bigamy  would  make  it  inapplicable 
to  such  a  case.  The  canonists  made  a  bigamist  one  who  mar- 
ried a  second  time  whether  the  former  consort  was  living  or 
dead,  or  one  who  married  a  widow.  The  word  bigamy  comes 
from  the  Latin  bis,  twice,  and  Greek  gatnos,  marriage.  The 
better  word  for  this  relation  according  to  the  original  meaning 
would  be  polygamy,  which  comes  from  the  Greek  polugamia, 
a  plurality  of  wives  or  husbands  at  the  same  time.  Bigamy 
and  polygamy  are  both  recognized  and  punished  as  crimes  in 
modern  criminal  law.  Polygamy  was  an  offense  against  the 
canonical  law  of  England,  but  not  against  the  common  or 
statute  law  until  the  reign  of  James  I.,  when  a  statute  passed 
in  1604  made  it  a  felony  if  committed  "within  his  majesty's 
dominions  of  England  and  Wales,"  except  where  the  former 
husband  or  wife  remained  seven  years  continuously  beyond 
sea,  or  the  same  time  within  his  majesty's  dominions  not 
known  to  the  other  to  be  living,  or  was  divorced,  or  there 
was  a  sentence  of  nullity,  or  the  parties  to  the  former  mar- 
riage were  within  the  age  of  consent.  This  statute  has  been 
the  model  of  all  statutes  passed  on  the  subject  since,  both  in 
England  and  this  country.  But  a  divorce  from  bed  and 
board  is  no  longer  a  protection  against  the  penal  consequences 
of  a  second  marriage,  nor  is  seven  years'  absence  beyond  seas 
if  the  absent  party  is  known  to  the  other  to  be  alive'.  In  the 
States  and  by  the  United  States  statute  the  punishment  for 
bigamy  or  polygamy  extends  to  fine  and  imprisonment.  See 
Bigamy  under  "  Law  of  Crime." 

Civil  Effects. — An  existing  marriage  renders  a  second  one 
void.  This  is  true  even  though  some  exception  in  the  statute 
on  polygamy  or  some  principle  of  the  common  law  exempts 
the  one  entering  into  it  from  statutory  punishment.  As,  if  a 
woman  whose  husband  had  been  absent  and  unheard  from 


432  THE    LAW   OF    BUSINESS. 

for  seven  years,  and  she  believed  him  dead,  and  remarried, 
and  he  then  returned  alive.  She  would  be  relieved  from  pun- 
ishment for  bigamy  but  her  second  marriage  would  be  void. 

Who  May  Take  Advantage. — This  subject  affords  a  re- 
markable exception  to  an  old  and  well  established  rule  of  law, 
viz.,  that  a  party  is  estopped  from  alleging  his  own  wrong  in 
a  court  of  justice.  In  consequence  of  this  rule  a  party  can 
not  bring  a  suit  to  have  his  marriage  set  aside  on  the  ground 
that  it  was  contracted  through  his  own  fraud,  though  in  law  it 
is  void.  But  this  rule  does  not  apply  to  polygamous  marriages. 
It  has  been  decided  in  several  States  and  seems  to  be  well  set- 
tled that  a  person  who  has  entrapped  another  into  a  polyga- 
mous marriage  may,  as  well  as  the  innocent  party,  bring  a  suit 
to  have  its  nullity  declared.*  The  most  valid  reason  assigned 
by  the  courts  for  this  decision  is  that  the  impediment  is  a  dis- 
tinct thing  from  the  fraud,  not  depending  upon  it  in  any  way. 

If  a  marriage  has  been  declared  void  by  a  decree  of  nullity 
this  relieves  the  parties  from  the  rule  of  evidence  which  pro- 
tects what  passes  in  confidence  between  husband  and  wife. 
After  this  decree  either  of  them  can  be  a  witness  to  what 
transpired  during  their  alleged  marriage. 

A  pauper  woman  can  not  claim  the  man's  settlement  upon 
her  after  their  marriage  has  been  declared  void. 

As  between  themselves  the  parties  after  a  decree  of  nullity 
are  as  though  no  marriage  ceremony  or  form  had  ever  taken 
place.  They  are  single  if  they  were  single  before,  and  their 
property  rights  are  viewed  as  though  no  marriage  form  had 
ever  taken  place.  The  woman  can  not  claim  any  share  in  his 
property,  nor  alimony  or  dower;  the  man  can  have  no  interest 
in  her  estate  nor  curtesy  in  her  lands.     She  can  sue  and  be 


*Glassw.  Glass,  114  Mass.  563,566;  Ponder  vs.  Graham,  4  Fla.  23, 
Martin  vs.  Martin,  21  Ala.  86. 


MARRIAGE.  433 

sued  as  any  feme  sole.  She  can  even  maintain  an  action  at 
law  against  the  man  for  property  which  was  hers  before  their 
alleged  marriage  and  for  her  services  to  him  during  cohabita- 
tion. 

Children  born  to  them  are,  by  operation  of  the  decree,  nec- 
essarily illegitimate,  whether  the  marriage  was  void  or  void- 
able. The  legislatures  of  our  States  are  now  taking  a  more 
merciful  view  of  this  case,  however,  and  adopting  the  civil  law 
rules  which  make  such  children  legitimate.  Missouri  has  a 
statute  that  makes  the  children  of  a  void  marriage  legitimate. 
Similar  statutes,  though  differing  in  some  respects,  exist  in 
Massachusetts,  California,  Maine,  Texas,  Maryland  and  several 
over  States.  In  Louisiana,  where  the  civil  law  of  Spain  largely 
prevails,  if  a  woman  is  deceived  into  marrying  a  man  who  has 
another  wife  living,  and  is  ignorant  of  the  impediment,  she  is 
entitled,  while  the  deception  lasts,  to  all  the  rights  of  a  wife, 
and  the  children  born  during  the  period  are  legitimate. 

Burge  says  that  such  a  marriage,  "though  null  and  void, 
will  have  the  effect  of  entitling  the  wife,  if  she  be  in  good 
faith,  to  enforce  the  rights  of  property  which  would  have 
been  competent  to  her  if  the  marriage  had  been  valid,  and  of 
rendering  the  children  legitimate."  He  says  too,  that  this 
rule  sprang  from  the  canon  law  and  not  the  civil;  was  un- 
known in  England,  Ireland  and  Holland,  but  was  admitted 
into  France,  Spain  and  Germany,  and  was  finally  adopted  by 
the  civil  code.     It  now  seems  to  prevail  in  Scotland. 

It  is  competent  for  the  legislature  of  a  State  to  pass  a  law 
forbidding  certain  persons  to  marry,  and  some  States  have 
laws  forbidding  those  for  whose  fault  divorces  have  been 
granted  to  remarry.  A  rule  of  the  old  Scotch  law  is  that  the 
guilty  party  divorced  for  adultery  shall  not  marry  the  particeps 
criminis,  or  the  one  with  whom  the  adultery  was  committed. 

The  question  whether  a  remarriage  in  violation  of  a  statu- 
28 


434  THE    LAW   OF    BUSINESS. 

tory  prohibition  is  valid,  voidable  or  void  is  not  definitely  set- 
tled. It  will  depend,  however,  upon  the  express  terms  of  the 
statute  forbidding  the  remarriage. 

Presumption  of  Marriage. — The  presumptions  of  the  law 
are  always  favorable  to  marriage.  All  reasonable  interpreta- 
tions of  laws  and  decisions,  of  personal  acts  and  words  will  be 
made  in  favor  of  the  validity  of  a  marriage.  In  Missouri,  and 
perhaps  in  some  other  States,  it  has  been  held  that  where  the 
parties  hold  themselves  out  as  husband  and  wife  and  cohabit 
together  as  such,  a  marriage  is  to  be  presumed.  And  if  parties 
capable  of  contracting  mutually  agree  together  to  be  husband 
and  wife  and  cohabit  and  assume  the  relations  of  husband  and 
wife,  the  marriage  is  valid  without  any  ceremony.  It  is  best 
to  have  witnesses  to  the  assumption  of  the  marriage  relation. 
The  statute  of  California  makes  consent,  followed  by  mutual 
assumption  of  marital  rights  and  duties,  sufficient  to  constitute 
valid  marriage. 

Interest  of  Third  Parties. — The  decree  of  nullity  does  not 
affect  third  parties  to  so  great  an  extent  as  it  does  the  parties 
interested  primarily. 

Things  executed,  where  the  husband  is  seized  in  right  of 
his  wife,  shall  not  be  avoided  by  a  sentence  of  nullity,  as  gift 
of  goods  to  the  wife,  receipt  of  rent,  etc.,  but  in  the  case  of  an 
inheritance  it  is  different. 

If  land  is  conveyed  to  husband  and  wife  and  the  heirs  of 
their  two  bodies,  and  afterward,  the  marriage,  being  voidable, 
is  avoided  by  sentence,  the  inheritance  is  turned  into  a  joint 
estate  for  life  and  the  estate  is  converted  into  moieties. 

If  a  lease  is  made  to  husband  and  wife  during  coverture 
and  a  decree  of  nullity  is  pronounced  after  the  husband  has 
sown  the  land,  he  is  entitled  to  the  emblements  and  not  the 
lessor. 

If  a  man  is  bound  to  a.  feme  sole,  and  afterwards  marry  her, 


MARRIAGE.  435 

and  then  they  are  divorced  by  decree  of  nullity,  his  obligation 
to  her  is  revived. 

If  the  husband  sell  his  wife's  lands  in  fee  and  then  a  decree 
of  nullity  is  made  of  their  marriage  her  estate  in  them  is  lost, 
the  sale  will  stand,  because  innocent  third  parties  are  inter- 
ested, but  between  the  parties  themselves  the  decree  will  de- 
stroy the  husband's  title  to  his  wife's  lands. 

A  man  may  be  answerable  for  debts  contracted  by  a  woman 
whom  he  holds  out  to  be  his  wife,  though  she  is  not  such.  If 
his  marriage  with  the  woman  is  voidable  he  will  be  liable  for 
debts  contracted  by  her  before  sentence  of  nullity,  but  not 
after. 

If  the  marriage  is  absolutely  void  third  persons  are  not  al- 
ways protected,  especially  if  the  first  owner  is  an  infant.  An  in- 
fant girl,  in  good  faith,  married  a  man  who  had  a  wife  living, 
and  her  father,  also  ignorant  of  the  impediment,  gave  her  a  slave. 
The  pretended  husband  afterwards  sold  the  slave  with  her 
consent,  while  she  was  yet  in  her  minority  and  still  ignorant 
of  the  deception  practiced  upon  her.  Held,  that  the  gift  in- 
vested the  husband  with  no  title,  and  further  that  the  sale 
conveyed  no  title  to  the  purchaser,  as  against  her. 

If  a  woman  has  been  deceived  by  a  man  into  a  bigamous  or 
other  void  marriage  with  him  she  may  by  bill  in  equity  com- 
pel him  to  account  to  her  for  all  rents  and  profits  received  by 
him  upon  her  land  during  the  supposed  marriage,  and  return 
it  to  her  with  its  proceeds.  At  law  she  can  recover  pay  for 
her  services  during  cohabitation.  If  he  is  dead  she  can  en- 
force her  claim  against  his  estate. 

Rights  and  Duties. — The  duties  imposed  and  rights  con- 
ferred on  the  parties  by  marriage  are  entirely  mutual. 

The  husband's  first  and  principal  duty  is  the  support  and 
maintenance  of  his  wife  according  to  his  position,  rank  and 
fortune.     Whatever  his  circumstances  she  is  entitled  to  food, 


436  THE    LAW   OF   BUSINESS. 

clothing,  shelter,  medical  attendance  and  nursing.  She  is  en- 
titled to  the  necessaries  of  life  and  necessaries  vary  according 
to  their  station  and  means. 

Besides  the  above  mentioned,  they  include  a  means  of  loco- 
motion, furniture,  protection,  etc.,  such  as  the  husband,  con- 
sidering his  circumstances,  ought  to  furnish  for  his  wife  for 
her  sustenance,  health  and  comfort. 

Among  the  most  important  of  the  wife's  rights  is  the  irre- 
vocable agency  to  pledge  her  husband's  credit  for  whatsoever 
is  necessary  to  her  support  unless  he  provides  other  means. 

If  the  husband  is  an  infant  he  is  under  the  same  obligation 
as  an  adult  to  support  his  wife. 

The  husband  is  the  head  of  the  family  when  they  are  in 
cohabitation,  and  he  may  take  upon  himself  the  providing  for 
it  and  exclude  his  wife  from  all  share  in  it.  He  may  select  the 
tradespeople  that  he  will  buy  from  and  attend  to  all  details, 
and  as  long  as  he  does  this  the  wife's  agency  will  be  in  abey- 
ance— she  will  not  be  justified  in  pledging  her  husband's  credit 
for  necessaries  when  he  is  himself  supplying  them  from  some 
other  source. 

What  is  the  rule  then  to  guide  shopkeepers  and  trades- 
people in  extending  credit  to  a  husband  upon  the  wife's  order? 
Justice  Bayley  says  that  "cohabitation  is  presumptive  evidence 
of  the  assent  of  the  husband"  to  being  bound  by  the  wife's 
contract  for  "necessaries"  for  herself  and  family,  nothing 
more. 

If  a  husband  notifies  a  tradesman  beforehand  not  to  trust 
his  wife  he  will  not  be  liable,  unless  he  fail  to  provide  for  her 
wants  himself,  then  he  would  have  to  pay,  notwithstanding 
his  notice. 

The  husband  is  in  honor  bound  to  afford  his  wife  such  pro- 
tection as  he  is  able,  defending  her  person  against  violence 
and  her  name  against  reproach. 


MARRIAGE.  437 

Love,  Honor  and  Obey. — By  the  marriage  formula1  the  wife 
about-to-be  promises  to  love,  honor  and  obey  her  husband. 
Love  can  not  be  considered  in  the  light  of  a  duty.  Love  does 
not  flow  from  a  sense  of  duty.  Love  is  free.  Love  is  un- 
selfish. Love  leaps  with  joy  to  the  succor  of  its  object  while 
Duty  creeps  on  crutches.  But  while  love  is  not  a  duty  it  is  an 
essential  element  to  happiness  in  the  marriage  state.  To  in- 
sure the  best  results,  the  happiest  fruition  in  ripe  old  age  of 
the  rosy  dreams  of  youth  it  must  be  mutual.  It  has  been  said 
that  true  love  never  dies;  that  "love  is  love  forevermore." 
But  a  one-sided,  unrequited  love  grows  weary  and  heart  sick. 
Many  years  of  burning  without  any  returning  sentiment  to 
feed  the  consuming  fire  will  dim  the  brightness  of  the  flame 
and  cool  the  amorous  ardor,  and  mayhap  some  non-affiliating 
chemical  in  the  laboratory  of  practical  life  will  transform  the 
noble  sentiment  into  its  antipodal  hate. 

Woman's  nature  requires  love — it  feeds  and  lives  on  love 
and  if  husbands  would  remember  this  and  "waste  a  little 
time"  each  day  in  loving  their  wives  they  will  find  it  the  best 
investment  they  can  make.  It  will  bring  grand  returns  in  the 
form  of  a  happy'  home,  where  wife,  cheerful  and  happy,  de- 
votes herself  wholly,  in  thought  and  act,  to  husband's  happi- 
ness and  welfare.  Husbands,  a  kiss,  a  caress,  a  timely  word 
of  encouragement  and  commendation,  brings  magnificent  re- 
turns. But  let  it  come  from  the  heart,  true,  unaffected.  Then 
wife  is  yours,  devoted,  true;  her  every  act  directed  by  the 
thought,  "Will  this  please  him?"  Each  light-hearted,  happy, 
devoted  to  a  single  thought,  the  other,  rosy  cheeked  children 
come  to  bless  and  brighten  this  home  where  mutual  love  is 
sovereign  king.  Happy  and  sunny,  these  two  in  one,  each 
devoted  to,  absorbed  in  the  other,  journey  through  life  hand 
in  hand  as  one,  enjoying  all  life's  true  pleasures,  dividing  all 
its  sorrows,  and  thus  filling  out  to  full,  round  completeness 
the  measure  of  Divine  purpose  towards  man. 


438  THE    LAW   OF   BUSINESS. 

Honor  is  another  mutual  duty.  The  wife  should  honor 
the  husband,  the  husband  should  honor  the  wife.  The  great- 
est dishonor  that  either  one  can  bring  upon  the  other  is  to 
violate  the  marriage  vow  of  fidelity.  But  this  question  of 
fidelity  to  the  marriage  vow  is  almost  indissolubly  connected 
with  the  first  element,  love.  When  love  wanes  the  sense  of 
honor  grows  weak. 

It  will  avail  nothing  to  lecture  men  and  women  upon  the 
importance  of  keeping  inviolate  the  marriage  vow.  Nine- 
tenths  of  all  the  marital  woe  flows  from  unfaithfulness.  There 
is  a  sentiment  in  the  mind  of  man  that  will  not  brook  an)- 
dereliction  of  this  kind  on  the  part  of  his  wife.  With  equal 
right  and  justice  does  the  wife  revolt  when  the  husband  de- 
parts from  the  line  of  chastity.  Any  sentiment  in  either  that 
looks  lightly  on  or  condones  adultery  in  the  other  is  abnormal 
and  shows  a  depraved  mind.  Husbands,  do  not  thus  dishonor 
your  wives.  Wives,  do  not  by  your  infidelity  bring  dishonor 
and  shame  upon  your  husband  and  children. 

The  marriage  form  still  contains  the  word  "obey"  for  the 
wife's  obligation,  although  the  meaning  and  use  of  the  term 
in  modern  marital  relations  is  very  different  from  what  it 
was  in  olden  times.  Then  the  word  was  taken  and  applied  in 
its  literal  sense.  The  husband  commanded  and  the  wife 
obeyed.  His  authority  extended  to  the  application  of  all 
necessary  force  to  compel  obedience.  A  husband  could  beat 
his  wife  and  she  had  no  redress.  It  is  different  now  as  all 
wife  beaters  soon  learn.  Still,  technically,  the  husband  is  yet 
the  master  of  the  house;  he  is  the  head  of  the  family  and  in 
the  decision  of  questions  where  an  agreement  is  impossible 
his  dictum  would  be  law.  But  in  well-regulated  families  there 
is  no  such  thing  as  commanding  or  obeying.  Each  conforms 
to  the  wish  of  the  other,  now  one  yielding  a  point,  now  the 
other.  Love  is  again  at  the  bottom,  converting  commands 
into  requests  and  rendering  obedience  a  pleasure. 


divorce.  439 

Object  of  Marriage. — There  are  only  two  normal  and  nat- 
ural objects  of  marriage :  i.  Lawful  sexual  intercourse  without 
encouraging  licentiousness.  2.  The  propagation  of  the  race, 
or  the  begetting  of  offspring.  In  some  individual  marriages 
there  are  other  motives  and  objects,  as  the  direction  of  an 
estate  or  the  union  of  two  estates.  When  other  considera- 
tions than  the  two  mentioned  enter  into  a  marriage  they  al- 
most always  relate  in  some  way  to  property.  These  consid- 
erations or  motives  are  unnatural  and  should  not  be  allowed 
to  govern  against  natural  objections,  such  as  wTant  of  love  and 
respect,  incompatibility  of  disposition,  ill  health  and  proba- 
bility of  begetting  weak  and  sickly  offspring.  But  if  all  the 
natural  elements  to  produce  a  happy  and  fortunate  marriage 
are  present,  the  property  considerations  would  fall  into  place 
as  very  desirable  collateral  inducements. 

Consummation  of  Marriage. — The  object  of  marriage,  being 
as  above  stated  it  follows  that  sexual  intercourse  is  one  of  the 
rights  and  duties  of  the  married  state.  This  is  the  consumma- 
tion of  marriage,  although  if  man  and  wife  live  together  in  all 
respects  as  husband  and  wife  except  this  one  act  the  marriage 
will  be  considered  consummated  in  law.  The  consummation  of 
the  marriage  is  not  necessary  to  render  it  valid.  If  the  wife 
refuse  immediately  upon  marriage  to  perform  the  wifely  duties 
and  even  leave  her  husband  it  will  not  invalidate  the  marriage, 
and  the  same  is  true  of  the  husband.  If,  however,  there  is 
some  malformation  of  the  sexual  organs,  rendering  either  one 
physically  incapable  of  performing  the  sexual  function,  this 
would  be  sufficient  ground  for  divorce  in  most  States. 

DIVORCE. 

Divorce  is  the  act  of  the  State  by  which  a  legally  contracted 
marriage  is  dissolved.  In  our  previous  remarks  considerable 
has  been  said  upon  the  subject  of  invalid  marriages,  void  and 
voidable  marriages.     We  desire  here  to  call  attention  to  an 


440  THE   tAW   OF   BUSINESS. 

important  distinction:  If  the  marriage  is  void  or  voidable  the 
decree  so  declaring  is  properly  called  a  decree  of  nullity,  al- 
though the  term  divorce  is  frequently  improperly  applied. 
When  the  marriage  is  valid  and  for  reasons  arising  subse- 
quently a  legal  separation  takes  place,  the  decree  is  called 
divorce. 

There  are  two  kinds  of  divorce:  i.  A  vinculo  matrimonii. 
2.  A  mensa  et  thoro.  The  first  is  absolute  divorce  from  the 
bonds  of  matrimony  and  restores  both  to  their  former  posi- 
tions with  privilege  to  remarry.  The  second  is  divorce  from 
bed  and  board  and  is  only  partial,  placing  the  parties  under 
certain  restrictions,  the  most  important  of  which  is  that  they 
are  not  allowed  to  marry  again.  This  is  not  considered  good 
policy  in  this  country  and  very  few  States  grant  divorces  a 
mensa  et  thoro. 

Divorces  are  again  classified  according  to  the  authorities 
by  which  they  are  granted  into:  i.  Legislative.  2.  Judicial. 
A  legislative  divorce  is  one  granted  directly  by  act  of  the  leg- 
islature, or  by  a  court  under  direct  instructions  from  the  legis- 
lature. A  judicial  divorce  is  one  granted  by  decree  of  court 
in  accordance  with  general  statutory  provisions.  Nearly  all 
the  divorces  granted  in  this  country  are  judicial. 

The  principal  causes  of  divorces  are  adultery,  cruelty,  de- 
sertion, habitual  drunkenness,  gross  neglect  of  duty,  refusing 
to  maintain  being  able,  uniting  with  Shakers,  conviction  of 
crime,  absence  unheard  from,  and  a  few  others.  The  States 
have  all  legislated  on  the  subject  except  South  Carolina,  and 
the  statutes  of  each  State  lay  down  the  causes  which  shall  be 
considered  sufficient  ground  for  divorce  in  that  State  when 
proved.  Following  is  a  condensation  of  the  laws  of  all  the 
States  on  the  subject  of  divorce. 

'Previous  Residence  Required. — Dakota,  ninety  days;  Cali- 
fornia, Indiana,  Idaho,  Nebraska,  Nevada,  New  Mexico,  Texas 


DIVORCE.  441 

and  Wyoming,  six  months;  Alabama,  Arizona,  Arkansas,  Col- 
orado, Illinois,  Iowa,  Kansas,  Kentucky,  Maine,  Mississippi, 
Minnesota,  Missouri,  Montana,  New  Hampshire,  Ohio,  Oregon, 
Pennsylvania,  Rhode  Island,  Utah,  Vermont  (both  parties  as 
husband  and  wife),  West  Virginia,  Washington  Territory  and 
Wisconsin,  one  year;  Florida,  Maryland,  Michigan,  North 
Carolina  and  Tennessee,  two  years;  Connecticut  and  Massa- 
chusetts (if,  when  married,  both  parties  were  residents;  other- 
wise, five  years),  three  years. 

Causes  for  Divorce. — The  violation  of  the  marriage  vow  is 
cause  for  absolute  divorce  in  all  the  States  and  Territories,  ex- 
cepting South  Carolina,  which  has  no  divorce  laws. 

Physical  inability  is  a  cause  in  all  the  States  except  Cali- 
fornia, Connecticut,  Dakota,  Idaho,  Iowa,  Louisiana,  New 
Mexico,  New  York,  South  Carolina,  Texas  and  Vermont.  In 
most  of  these  States  it  renders  marriage  voidable. 

Wilful  desertion,  six  months,  in  Arizona. 

Wilful  desertion,  one  year,  in  Arkansas,  •  California,  Colo- 
rado, Dakota,  Florida,  Idaho,  Kansas,  Kentucky,  Missouri, 
Montana,  Nevada,  Oregon,  Utah,  Wisconsin,  Washington  Ter- 
ritory and  Wyoming. 

Wilful  desertion,  two  years,  in  Alabama,  District  of  Colum- 
bia, Illinois,  Indiana,  Iowa,  Michigan,  Mississippi,  Nebraska, 
Pennsylvania  and  Tennessee. 

Wilful  desertion,  three  years,  in  Connecticut,  Delaware, 
Georgia,  Maine,  Maryland,  Massachusetts,  Minnesota,  New 
Hampshire,  New  Jersey,  Ohio,  Texas,  Vermont  and  West 
Virginia.    . 

Wilful  desertion,  five  years,  in  Virginia  and  Rhode  Island, 
though  the  court  may  in  the  latter  State  decree  a  divorce  for  a 
shorter  period. , 

Habitual  drunkenness,  in  all  the  States  and  Territories,  ex- 
cept Maryland,  New  Jersey,  New  York,  North  Carolina,  Penn- 


442  THE    LAW   OF    BUSINESS. 

sylvania,  South  Carolina,  Texas,  Vermont,  Virginia  and  West 
Virginia. 

"Imprisonment  for  felony"  or  "conviction  of  felony"  in 
ali  the  States  and  Territories  (with  limitations),  except  Flor- 
ida, Maine,  Maryland,  New  Jersey,  New  Mexico,  New  York 
and  South  Carolina. 

"Cruel  and  abusive  treatment,"  "intolerable  cruelty,"  "ex- 
treme cruelty,"  "repeated  cruelty,"  or  "inhuman  treatment," 
in  all  the  States  and  Territories,  except  New  Jersey,  New 
York,  North  Carolina,  South  Carolina,  Virginia  and  West 
Virginia. 

Failure  by  the  husband  to  provide,  six  months  in  Arizona; 
one  year  in  California,  Colorado,  Dakota,  Nevada  and  Wyom- 
ing; two  years  in  Indiana  and  Idaho;  no  time  specified  in 
Idaho,  Massachusetts,  Michigan,  Maine,  Nebraska,  New  Mex- 
ico, Rhode  Island,  Vermont  and  Wisconsin;  wilful  neglect  for 
three  years,  in  Delaware. 

Fraud  and  fraudulent  contract  in  Arizona,  Connecticut, 
Georgia,  Idaho,  Kansas,  Kentucky,  Ohio,  Pennsylvania  and 
Washington  Territory. 

Absence  without  being  heard  from,  three  years  in  New 
Hampshire ;  seven  years  in  Connecticut  and  Vermont ;  separa- 
tion, five  years  in  Kentucky;  voluntary  separation,  five  years 
in  Wisconsin  and  Kentucky.  When  reasonably  presumed 
dead  by  the  court,  in  Rhode  Island. 

"Ungovernable  temper,"  in  Kentucky;  "habitual  indul- 
gence in  violent  and  ungovernable  temper,"  in  Florida;  "cruel 
treatment,  outrages  or  excesses  as  to  render  their  living 
together  insupportable,"  in  Arkansas,  Kentucky,  Louisiana, 
Missouri,  Tennessee  and  Texas;  "indignities  as  render  life 
burdensome,"  in  Missouri,  Oregon,  Pennsylvania,  Tennessee, 
Washington  Territory  and  Wyoming.  Attempt  to  murder 
the  other  party,  in  Illinois  and  Tennessee. 


DIVORCE.  443 

Other  causes  in  different  States  are  as  follows:  "Husband 
notoriously  immoral  before  marriage,  unknown  to  wife,"  in 
West  Virginia;  "fugitive  from  justice,"  in  Virginia;  "gross 
misbehavior  or  wickedness,"  in  Rhode  Island;  "any  gross 
neglect  of  duty,"  in  Kansas  and  Ohio;  "attempt  on  life,"  in 
Illinois;  "refusal  of  wife  to  remove  into  the  State,"  in  Ten- 
nessee; " mental  incapacity  at  time  of  marriage,"  in  Georgia; 
"three  years  with  any  religious  society  that  believes  the  mar- 
riage relation  unlawful,"  in  Massachusetts;  "joining  any  relig- 
ious sect  that  believes  marriage  unlawful,  and  refusing  to  co- 
habit six  months,"  in  New  Hampshire;  "parties  can  not  live 
in  peace  and  union,"  in  Utah;  "settled  aversion  which  tends 
to  permanently  destroy  all  peace  and  happiness,"  in  Ken- 
tucky; "insanity  for  five  years,"  in  Wisconsin,  and  for  ten 
years  in  Washington  Territory;  "vagrancy  of  the  husband," 
in  Missouri  and  Wyoming. 

In  Georgia  an  absolute  divorce  is  granted  only  after  the 
concurrent  verdict  of  two  juries  at  different  terms  of  the  court. 
In  New  York  absolute  divorce  is  granted  for  but  one  cause, 
adultery. 

The  granting  of  divorce  for  any  cause  is  left  to  the  discre- 
tion of  the  court  in  Washington  Territory.  The  discretion  of 
the  court  is  also  practically  allowed  by  law  in  Wisconsin. 

All  of  the  causes  above  numerated  are  for  absolute  or  full 
divorce,  and  collusion  and  connivance  are  especially  barred, 
and  also  condonation  of  violation  of  the  marriage  vow. 

Remarriage. — There  are  no  restrictions  upon  remarriage 
by  divorced  persons  in  Arizona,  Connecticut,  Kentucky,  Illi- 
nois and  Minnesota.  Either  party  may  remarry,  but  defend- 
ant must  wait  two  years  and  obtain  permission  from  the  court, 
in  Massachusetts.  The  decree  of  the  court  may  restrain  the 
guilty  party  from  remarrying  in  Virginia.  Parties  can  not  re- 
marry, except  by  permission  of  the  court,  in  Maine.     In  the 


444  THE   LAW  OF   BUSINESS. 

State  of  New  York  the  plaintiff  may  remarry,  but  the  defend- 
ant can  not  do  so  during  the  plaintiff's  lifetime,  unless  the  de- 
cree be  modified  or  proof  that  five  years  have  elapsed  and 
that  complainant  has  married  again  and  defendant's  conduct 
has  been  uniformly  good.  Any  violation  of  this  is  punished 
as  bigamy,  even  though  the  other  party  has  been  married.  In 
Delaware,  Pennsylvania  and  Tennessee,  no  wife  or  husband 
divorced  for  violation  of  the  marriage  vow  can  marry  the 
particeps  criminis  during  the  life  of  the  former  husband  or 
wife,  nor  in  Louisiana  at  any  time ;  such  marriage  in  Louisiana 
renders  the  person  divorced  guilty  of  bigamy. 

In  Kansas  a  divorce  will  be  granted  to  one  party  upon  the 
ground  that  the  other  has  obtained  a  divorce  in  another  State, 
and  the  respondent  has  been  forbidden  to  remany.  A  party 
thus  forbidden  may  go  to  Kansas  and  obtain  a  divorce  also 
upon  this  ground  but  with  privilege  to  remarry,  and  if  service 
can  be  had  upon  the  one  who  first  obtained  the  divorce  in  an- 
other State,  or  that  one  can  be  brought  under  the  jurisdiction 
of  the  Kansas  courts,  the  divorce  in  Kansas  must  be  recog- 
nized as  valid  in  other  States  and  the  party  can  not  now  be 
punished  for  remarrying. 

In  New  York  desertion  for  five  years,  without  knowledge 
that  the  deserter  is  living  permits  the  one  deserted  to  marry 
again;  and  if  the  deserter  then  return  the  second  marriage 
will  be  valid,  but  it  may  be  declared  void,  but  only  from  the 
date  of  the  decree,  not  ab  initio.  And  proper  petition  must  be 
made  to  a  court  of  competent  jurisdiction  to  have  second  mar- 
riage so  declared,  and  if  no  such  petition  is  ever  filed,  and  all 
parties  are  satisfied,  one  husband  may  live  in  lawful  wedlock 
with  two  or  more  wifes  or  one  wife  with  two  or  more  hus- 
bands. The  children  will  all  be  legitimate  and  inherit  equally 
and  both  wives  will  be  entitled  to  dower. 


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MisceLLftNeous. 


THE    BROOKLYN    BRIDGE. 


THE  great  New  York  and  Brooklyn  Bridge  is  a  suspen- 
sion bridge,  and  the  greatest  structure  of  the  kind  in 
the  world.  It  consists  of  three  spans  and  two  ap- 
proaches. The  bridge  was  suggested  by  Colonel  Julius 
W.  Adams,  in  1855.  The  act  of  incorporation  was  passed  in 
April,  1866.  Work  commenced  January  2,  1870.  First  rope 
was  thrown  across  the  river  August  14,  1876.  Master  Me- 
chanic Farrington  crossed  in  a  boatswain's  chair  August  25, 
1876.  New  York  foundation  is  78^  feet  below  high  water 
mark,  Brooklyn  foundation,  45  feet.  New  York  tower  con- 
tains 46,945  cubic  yards  of  masonry,  Brooklyn  38,214.  Size 
of  towers  at  high  water  line,  140x59  feet;  at  roof  course 
136x53  feet.  Height  of  towers  above  high  water,  276^  feet. 
Height  of  roadway  in  the  clear  in  the  middle  of  East  river, 
135  feet;  grade  of  roadway  3  feet,  3  inches  to  100  feet.  Width 
of  bridge  85  feet;  promenade  through  center  16  feet,  7  inches; 
railway  at  side  of  promenade  12  feet,  10  inches;  carriage  way 
on  tlie  other  side  18  feet,  9  inches.  Length  of  bridge  includ- 
ing approaches,  5,986^  feet  or  35  miles;  length  of  main  span 
1,595^  feet;  each  land  span  930  feet;  Brooklyn  approach  971 
feet;  New  York  approach  1,560  feet.  The  superstructure  is 
suspended  on  four  great  cables,  each  3,578^  feet  long  and 
15^  inches  in  diameter,  and  each  containing  5,434  steel  gal- 
vanized wires  and  weighing  about  800  tons.  Each  cable  will 
support  1,500  tons.     There  are  10,000  tons  of  steel  in  the  sus- 

450 


THE   WASHINGTON   MONUMENT.  45 1 

pended  superstructure.     The  bridge  cost  $15,000,000,  and  was 
opened  for  traffic  in  1883. 

THE   WASHINGTON    MONUMENT. 

The  corner  stone  was  laid  July  4,  1848,  by  President  Polk. 
The  cap  stone  was  set  in  position  December  6,  1884.  There 
was  a  long  period,  about  a  quarter  of  a  century,  in  which  no 
work  whatever  was  done.  The  foundations  are  126^  feet 
square  and  36  feet  8  inches  deep.  The  base  of  the  monument 
is  55  feet  1%  inches  square.  It  is  hollow,  the  walls  being  15 
feet  %.  inch  thick.  At  the  500  foot  mark,  where  the  pyramidal 
top  begins,  the  shaft  is  34  feet  5^  inches  square  and  the  walls 
are  18  inches  thick.  The  monument  is  built  of  marble  blocks 
2  feet  thick,  over  18,000  in  number  being  required.  The 
height  above  ground  is  555  feet.  The  pyramidal  top  termi- 
nates in  an  aluminum  tip  9  inches  high  and  weighing  100 
ounces.  The  mean  pressure  of  the  monument  is  5  tons  per 
square  foot,  the  entire  weight,  foundation  and  all,  about  81,000 
tons.  The  door  at  the  base  is  8  feet  wide  and  16  feet  high 
and  opens  to  a  room  25  feet  square.  Sight  seers  are  taken  to 
the  top  of  this  wonderful  structure  by  an  elevator  which  is 
supported  by  an  immense  iron  frame  work.  The  elevator  car 
is  hoisted  by  steel  ropes  2  inches  in  diameter.  The  top  may 
also  be  reached  by  stairs  of  which  there  are  fifty  flights  of  18 
steps  each.  520  feet  from  the  ground  there  are  8  windows, 
18  x  24  inches,  two  on  each  face.  At  the  base  of  the  pyramidal 
top,  500  feet  up,  the  area  of  the  top  is  1,187*4  square  feet, 
enough  to  make  six  rooms  12  x  16  and  enough  space  left  for 
closets.  The  Washington  Monument  is  the  highest  structure 
in  the  world.  The  Cologne  Cathedral  is  525  feet  high;  the 
pyramid  of  Cheops,  486;  Strasburg  Cathedral,  474;  St.  Peters, 
at  Rome,  448.  The  cost  of  the  Monument  was  about 
$1,500,000. 


LATITUDE  REACHED. 

8o° 

23  min. 

00.5  sec. 

8o° 

48  min. 

00.5  sec. 

8i° 

12  min. 

42.5  sec. 

82° 

45  min. 

30.5  sec. 

82° 

09  min. 

00.5  sec. 

83° 

20  min. 

26.5  sec. 

83° 

07  min. 

00.5  sec. 

83° 

24  min. 

00.5  sec. 

452  MISCELLANEOUS. 

THE  NORTH  POLE. 
The  North  Pole  is  the  northern  terminus  of  the  axis  of 
the  earth's  rotation.  It  is  purely  geographical  and  imaginary. 
The  point  has  never  been  reached  by  man,  although  many 
efforts  have  been  made  to  do  so.  The  following  are  the  most 
important. 

YEAR.  EXPLORER. 

1607 — Hudson,        .... 

1773 — Phipps,  (Lord  Musgrove), 

1806 — Scoresby,      .... 

I827 — Parry, 

1874 — Meyer,  (on  land), 

1875 — Markham,  (Nare's  exp'd), 

1876 — Payer, 

1884 — Lockwood,  (Greely's  party), 

Mr.  Lockwood,  a  member  of  the  celebrated  Greely  expedi- 
tion, reached  within  6  deg.  36  min.  or  455  miles  of  the  pole. 
The  region  reached  by  Lockwood  is  covered  with  ice  gorges 
and  precipices  of  snow  and  ice  of  almost  insurpassable  diffi- 
culty. No  instrument  could  measure  the  degree  of  cold;  it 
blisters  the  skin  upon  touch  like  a  red  hot  iron.  Progress  is 
necessarily  extremely  slow,  five  or  six  miles  being  a  long  day's 
journey.  Then  several  days  rest  must  be  taken  before  another 
attempt  is  made  to  penetrate  this  forbidding  wilderness  of 
snow  and  ice. 

seven  wonders  of  the  world. 

Pyramids  of  Egypt. 

Hanging  Gardens  of  Babylon,  including  Tower  Walls 
and  Terrace. 

Statue  of  Jupiter  Olympus,  on  the  Capitoline  Hill,  at 
Rome. 

Temple  of  Diana,  at  Ephesus. 


LONDON.  453 

Pharos,  or  the  Watch  Tower,  at  Alexandria,  Egypt. 
Colossus  of  Rhodes,  a  statue  105  feet  high,  overthrown 
by  an  earthquake  224  B.  C. 

Mausoleum  at  Halicarnassas,  a  city  in  Asia  Minor. 

LONDON. 

Every  school  boy  is  taught  that  London,  England,  is  the 
largest  city  in  the  world,  but  few  have  any  idea  of  this  won- 
derful collection  of  human  beings.  It  covers  700  square 
miles  and  numbers  over  5,000,000  people.  They  are  not  all 
Englishmen ;  two  out  of  every  five  are  foreigners  from  every 
part  of  the  earth — 2,000,000  foreigners.  London  has  a  birth 
every  five  minutes,  288  a  day,  105,128  a  year;  has  a  death 
every  eight  minutes,  180  a  day,  65,700  a  year.  Has  8,000  miles 
of  streets  and  seven  accidents  a  day  upon  them.  She  opens 
up  40  miles  of  new  streets  a  year  and  builds  15,000  new 
houses. 

London  has  a  1,000  ships  and  over  10,000  sailors  in  her 
ports  every  day ;  her  beer  and  gin  shops  would,  if  placed  side 
by  side,  extend  a  distance  of  78  miles.  Out  of  these  shops 
come  every  year  38,000  drunkards  before  her  magistrates.  She 
has  15,000  cabmen,  15,000  police  and  15,000  people  connected 
with  the  post-office.  Her  people  receive  300,000,000  letters 
every  year.  Every  day  850  trains  pass  Clapham  Junction  and 
the  under-ground  railroad  runs  1,211  trains  a  day.  Her  omni- 
bus companys'  700  busses  carry  56,000,000  passengers  every 
year.  It  cost  $3,000,000  a  year  to  light  her  streets.  She  has 
400  daily  and  weekly  newspapers.  There  is  more  danger  in 
walking  her  streets  than  in  crossing  the  Atlantic  Ocean.  In 
one  year  130  persons  were  killed  and  2,060  injured  by  vehicles 
in  the  streets.  London,  the  greatest  city  in  the  world,  has 
the  most  perfect  draii.age  system  and  is  a  very  healthy  city, 
her  death  rate  being  very  low.     She  is  3,009  years  old,  having 


454  MISCELLANEOUS. 

been  founded  by  Brute,  the  Trojan,  in  the  year  of  the  world 
2832. 

SALARY    OF   THE    PRESIDENT. 

Since  Grant's  last  term  the  President  of  the  United  States 
has  received  a  salary  of  $50,000  per  annum.  Previous  to  that 
time  it  was  $25,000.  In  addition  to  the  $50,000  salary  he  re- 
ceives $36,064  for  subordinates  and  clerks.  His  private  sec- 
retary receives  $3,250;  an  assistant  private  secretary  $2,250;  a 
stenographer  $1,800;  five  messengers,  each  $1,200;  a  steward 
$1,800;  two  doorkeepers,  each  $1,200;  two  ushers,  one  $1,400, 
the  other  $1,200;  a  night  usher  $1,200;  a  watchman  $900;  a 
man  who  takes  care  of  the  fires  $864.  Then  he  gets  $8,000 
for  incidental  expenses,  such  as  stationery,  carpets,  care  of  the 
presidential  stables,  etc.  He  gets  $12,500  for  repairing  and 
refurnishing  the  White  House ;  $4,000  for  the  green  house ; 
$2,500  for  fuel ;  $15,000  for  gas,  matches  and  the  stable.  The 
President  and  White  House  cost  the  country,  all  told,  over 
$125,000  a  year. 

COST  OF   ROYALTY. 

While  the  above  figures  seem  large  for  the  expense  of  our 
Chief  Magistrate,  they  are  in  reality  very  small  compared  with 
the  cost  of  the  royal  families  of  Europe  to  their  governments. 
Her  Majesty,  Queen  Victoria's  privy  purse  or  salary  is  ,£60,000 
or  $300,000.  Salaries  and  expenses  of  household,  Royal 
bounty,  etc.,  added  to  this  give  a  total  of  ^385,800  or  $1,929,000 
for  Her  Majesty  alone.  Then  there  are  13  princes,  princesses, 
dukes  and  duchesses  that  draw  handsome  salaries  and  do 
nothing,  running  the  grand  aggregate  up  to  ,£566,800  or 
$2,834,000,  making  the  salary  and  expenses  of  our  President 
who  does  more  work  in  a  month  than  the  whole  royal  family 
do  in  a  lifetime,  appear  very  insignificant. 


CUSTOM  REGULATIONS.  455 

UNITED  STATES  CUSTOM  REGULATIONS  AS  TO  BAGGAGE. 

All  persons  entering  any  of  the  ports  of  the  United  States 
from  a  foreign  country  are  subjected  to  an  examination  of 
their  baggage.  On  all  dutiable  articles  a  duty  must  be  paid 
according  to  the  schedule  fixed  by  Congress.  The  following 
articles  are  free  from  duty:  Wearing  apparel  and  other  per- 
sonal effects  (not  merchandise),  professional  books,  implements, 
instruments  and  tools  of  trade,  occupation  or  employment. 

The  owner  of  articles  brought  into  the  United  States,  or 
his  agent,  shall  make  an  entry  of  all  articles  of  wearing  ap- 
parel and  other  personal  baggage,  and  professional  books,  im- 
plements and  instruments  of  trade,  the  same  as  of  other  mer- 
chandise, but  separate  and  distinct  from  the  entry  of  any 
other  merchandise  imported  from  a  foreign  port.  This  entry 
shall  be  made  with  the  Collector  of  the  district  in  which  the 
articles  are  intended  to  be  landed.  It  must  state  the  person 
by  whom  or  for  whom  such  entry  is  made  and  must  particu- 
larize the  several  packages  and  their  contents,  with  their 
marks  and  numbers.  And  the  person  making  the  entry  must 
take  and  subscribe  an  oath  before  the  Collector,  declaring 
that  the  entry  subscribed  by  him  and  to  which  his  oath  is 
annexed,  contains,  to  the  best  of'  his  knowledge  and  belief,  a 
just  and  true  account  of  the  contents  of  the  several  packages 
mentioned,  specifying  the  name  of  the  vessel,  the  name  of  her 
master  and  the  port  from  which  she  has  arrived;  and  stating 
that  the  said  packages  contain  no  merchandise  whatever,  other 
than  wearing  apparel,  personal  baggage,  or  as  the  case  may 
be,  tools  of  trade,  specifying  it;  that  they  are  all  the  property 
of  a  person  named  who  has  arrived,  or  is  about  to  arrive,  in  the 
United  States,  and  are  not,  directly  or  indirectly,  imported  for 
any  other,  or  intended  for  sale. 

If  any  article  is  found  in  any  of  the  packages  or  baggage 
which  is  subject  to  duty  and  which  was  not  mentioned  in  the 


456  MISCELLANEOUS. 

entry  made  to  the  Collector  by  the  person  making  the  entry, 
such  article  shall  be  forfeited  to  the  Government,  and  the 
person  in  whose  baggage  it  is  found  shall  be  liable  to  a  penalty 
of  treble  the  value  of  the  article  found. 

"  Professional  books,  implements  and  tools  of  trade,  occu- 
pation or  employment,"  embrace  such  books  or  instruments 
as  would  naturally  belong  to  a  surgeon,  physician,  engineer 
or  other  scientific  person  returning  to  this  country.  The  real 
rule  of  determining  whether  an  article  is  free  or  not  is 
whether  it  is  intended  for  personal  use  or  for  sale. 

Jewelry  that  has  been  in  use  as  a  personal  ornament  and  is 
expected  to  be  worn  again  by  the  person,  being  only  tempor- 
arily laid  aside,  may  be  admitted  free. 

A  single  passenger  can  only  bring  in  one  watch  free.  If 
he  have  several  watches,  all  old,  he  may  select  one  to  be  con- 
sidered his  personal  effects;  if  some  are  new  and  some  old,  all 
the  new  are  dutiable — he  may  select  an  old  one  for  his  own. 

Following  is  the  decision  of  the  United  States  Supreme 
Court:  The  free  list  includes  (i),  wearing  apparel  owned  by 
the  passenger  and  in  a  condition  to  be  worn  at  once  without 
further  manufacture;  (2),  brought  with  him  as  a  passenger 
and  intended  for  the  use  or  wear  of  himself  or  his  family  who 
accompanied  him  as  passengers,  and  not  for  sale  or  purchased 
or  imported  for  other  persons,  or  to  be  given  away;  (3),  suit- 
able for  the  season  of  the  year  which  was  immediately  ap- 
proaching at  the  time  of  his  arrival;  (4),  not  exceeding  in 
quantity,  or  quality,  or  value  what  the  passenger  was  in  the 
habit  of  ordinarily  providing  for  himself  and  his  family  at 
that  time,  and  keeping  on  hand  for  his  and  their  reasonable 
wants,  in  view  of  their  means  and  habits  of  life,  even  though 
such  articles  had  not  been  actually  worn. 

STANDARD   TIME. 

Since  November  18,  1883,  all  the  railroads  of  the  United 


STANDARD   TIME.  457 

States  have  been  run  on  "Standard  Time."  Previous  to  that 
there  were  fifty-eight  kinds  of  time  in  use  by  the  railroads  of 
the  country,  resulting  in  endless  confusion  and  rendering  it 
impossible  for  travelers  to  calculate  the  arrival  and  departure 
of  trains.  A  conference  of  the  railroad  men  of  the  country  re- 
sulted in  the  establishment  of  "Standard  Time,"  which  has 
only  four  variations,  the  difference  in  each  case  being  exactly 
one  hour.  This  system  of  time  for  the  railroads  was  estab- 
lished by  dividing  the  country  into  four  sections,  each  fifteen 
degrees  of  Longitude  wide  from  East  to  West.  Every  school 
boy  knows  that  the  sun  passes  over  fifteen  degrees  of  Longi- 
tude in  one  hour,  hence  it  is  that  the  change  from  one  time  to 
another  is  always  exactly  one  hour. 

EASTERN   TIME. 

The  time  of  the  first  section  on  the  East  is  called  "Eastern 
Time."  It  is  the  time  of  the  75th  Meridian  from  Greenwich, 
which  runs  a  few  miles  east  of  Philadelphia.  The  time  of  the 
entire  section  is  the  same  as  the  time  of  the  Meridian  through 
the  center.  For  7^  degrees  east  and  7^  degrees  west  of  the 
75th  Meridian  all  trains  run  on  the  time  of  the  75th  Meridian, 
which  is  called  Eastern  Time.  This  section  extends  from  the 
eastern  part  of  Maine  to  near  Detroit,  Michigan.  The  princi- 
pal cities  in  this  section  are  Boston,  Albany,  New  York,  Syra- 
cuse, Rochester,  Buffalo,  Philadelphia,  Washington  and  many 
others.  The  western  boundary  of  the  Eastern  section  is  the 
Meridian  82^  degrees  west  from  Greenwich,  this  being  7^ 
degrees  west  from  the  75th  Meridian.  A  train  running  West 
when  it  crosses  this  Meridian  passes  at  once  into 

CENTRAL  TIME. 

This  is  the  time  of  the  90th  Meridian  and  is  exactly  one 
hour  behind  Eastern  time.  In  other  words,  if  an  engineer's 
watch  shows  1 1  o'clock  just  before  he  passes  from  Eastern 


458  MISCELLANEOUS. 

into  Central  time  he  will  know  after  he  crosses  the  line  that  it 
is  only  10  o'clock  in  that  section  and  run  to  make  all  his  con- 
nections accordingly.  This  section  commences  near  Detroit, 
Michigan,  and  extends  15  degrees  West  to  the  vicinity  of 
Yankton,  Dakota,  and  Austin,  Texas.  Cleveland,  Cincinnati, 
Columbus,  Chicago,  St.  Louis,  Kansas  City,  Omaha  and  all 
places  in  this  section  have  the  same  time  for  railroad  purposes. 

MOUNTAIN   TIME. 

This  is  the  time  of  the  105th  Meridian,  which  passes  near 
Denver,  Colorado.  It  is  one  hour  slower  than  Central  time 
and  extends  from  Yankton  and  Austin  to  near  Salt  Lake  City. 
For  railroad  purposes  the  time  of  all  places  in  this  section  is 
the  same. 

WESTERN   TIME. 

This  is  the  time  of  the  120th  Meridian  and  begins  7^  de- 
grees east  of  that  Meridian  or  112J&  degrees  west  of  Green- 
wich. It  is  one  hour  slower  than  Mountain  time.  The  time 
for  railroad  purposes  in  all  places  in  this  section,  Walla 
Walla,  Los  Angeles,  San  Francisco,  Sacramento,  Portland, 
etc.,  is  the  same. 

LOCAL  TIME. 

Every  city  which  is  not  located  on  one  of  the  four  Merid- 
ians above  named,  75,  90,  105  or  120,  has  its  own  local  time 
which  differs  from  the  Standard  or  Railroad  time  according  to 
its  distance  from  the  central  Meridian  of  the  section.  Cincin- 
nati time  is  22  minutes  faster  than  Central  Standard  time,  be- 
cause Cincinnati  is  about  $}4  degrees  east  of  the  90th  Merid- 
ian. Philadelphia  time  is  only  38  seconds  slower  than  Eastern 
Standard  time,  because  Philadelphia  is  only  a  few  miles  west 
of  the  75th  Meridian. 


POINTS   OF   LAW.  459 

POINTS   OF   LAW. 

Ignorance  of  law  excuses  no  one. 

It  is  a  fraud  to  conceal  a  fraud. 

The  law  does  not  compel  any  one  to  do  impossibilities. 

A  contract  without  consideration  can  not  be  enforced. 

Signatures  made  with  lead  pencil  are  binding. 

A  contract  made  with  a  minor  is  voidable  by  the  minor. 

A  note  given  by  a  minor  is  voidable. 

A  contract  made  with  a  lunatic  is  void. 

A  contract  or  note  obtained  by  fraud,  or  from  a  person  in 
a  state  of  intoxication,  can  not  be  enforced. 

The  acts  of  one  partner  of  a  firm  bind  all  the  others. 

Each  individual  in  a  partnership  is  liable  for  the  whole 
amount  of  the  debts  of  the  firm. 

Principals  are  responsible  for  the  acts  of  their  agents. 

Agents  are  liable  to  their  principals  for  errors  or  the  results 
of  their  mistakes. 

The  loss  of  a  note  by  accident  or  theft  does  not  release 
the  maker;  he  must  pay.  But  it  may  be  necessary  for  the 
holder  to  prove  the  amount  and  consideration. 

Notice  of  protest  to  an  endorser  of  a  note  must  be  served 
within  twenty-four  hours  of  its  non-payment,  otherwise  he  is 
exempt  from  liability. 

A  receipt  for  money  paid  is  not  legally  conclusive.  It  may 
be  allowed  to  prove  that  the  money  was  not  paid 

LAW   OF   FINDING. 

The  one  who  finds  anything  has  a  clear  title  to  it  against 
the  whole  world  except  the  owner.  This  is  true  whether  the 
thing  is  found  011  the  premises  of  the  finder  or  of  some  one 
else.  An  inn  keeper  has  no  right  to  demand  property  found 
on  his  premises  by  a  guest  or  other  person.  Neither  has  a 
shop  or  store  keeper.  This  law  is  a  century  old.  It  was  set- 
tled in  King's  Bench  under  these  facts: 


460  MISCELLANEOUS. 

A  person  found  a  wallet  on  a  shop  floor.  He  handed  it 
and  the  money  it  contained  to  the  shop  keeper  to  restore  to 
the  owner.  Three  years  passed  and  no  owner  appeared  to 
claim  the  property.  The  finder  then  demanded  the  wallet  and 
money.  The  shop  keeper  refused  011  the  ground  that  they 
were  found  on  his  premises.  The  finder  sued  and  the  decision 
of  the  court  was  as  stated  above,  that  the  title  of  the  finder  is 
perfect  against  all  the  world  except  the  owner. 

The  finder  has  been  held  to  stand  in  the  place  of  the 
owner,  in  this  way:  if  a  person  find  an  article  and  lose  it 
again  and  a  third  person  find  it  the  first  finder  may  recover  it 
from  the  second. 

The  police  have  no  more  rights  in  property  found  than 
any  one  else  unless  a  special  statute  may  confer  such  rights. 

Receivers  of  articles  found  are  trustees  for  the  owner  or 
finder.  They  can  not  hold  an  article  against  the  finder  any 
more  than  the  finder  can  hold  it  against  the  owner. 

RARE  U.  S.  COINS  AND  THEIR  VALUE. 

Silver  Dollars. — Rarest  dates  are:  1794,  worth  $35; 
1798,  with  small  eagle,  $2j  1799,  with  five  stars  facing,  $2; 
1804,  worth  $8;  1836,  $5;  1838,  $25;  1839,115;  1851,120; 
1852,  $25;   1854,  $6;   1855,  $5;   1856,  $2;   1858,  $20. 

Silver  Half  Dollars. — The  rarest  are:  1794,  valued  at 
$5;  1796,  $40;  1797,  $30;  1801,  $2;  1802,  $2;  1815,  $4; 
1836,  reeded,  $3;  1838,  Orleans,  $5;  1852,13;  1853,110  ar- 
rows, $15. 

Silver  Quarter  Dollars. — The  rarest  are:  1796,  valued 
at  $3;  1804,  $3;  1823,  $50;   1853,  no  arrows,  $4. 

Silver  Twenty  Cent  Pieces. — The  rarest  are:  1874 
proof,  valued  at  $10;  1877  proof,  $2;   1878  proof,  $2. 

Silver  Dimes. — The  rarest  are:  1796,  valued  at  $3;  1797, 
16  stars,  $4;  1797,  13  stars,  $4.50;  1798,  $2;  1800,  $4;  1801, 
1802  and  1803  each  valued  at  $3;  1804,  $5;  1805  to  18 10,  in- 
clusive, each  50  cts.;  1811,  75  cts.;   1822,  $3;  1846,  $1. 


LEGAL   HOLIDAYS.  46 1 

Silver  Half  Dimes. — The  rarest  are:  1794,  valued  at  $3 ; 

1795.  75  cts-;    J796  and  1797,  $2  each;    1800,  75  cts.;    1801, 
$1.50;  1802,  $50;  1803,  $1.50;  1805,  $3;  1846,  $1. 

Silver  Three  Cent  Pieces.— The  rarest  are:  1851  to 
1854  inclusive,  15  cts.  each ;  1855,  25  cts.;  1856  to  1861,  inclu- 
sive, 15  cts.  each  ;  1863  to  1872,  inclusive,  50  cts.  each. 

One  Cent  Pieces. — The  rarest  are:  1793,  with  wreath, 
valued  at  $2.50;  1793,  with  chain,  $3.50;  1793,  with  liberty 
cap,  $4;  1799,  $25;  1804,  $200;  1809,  $1. 

Half  Cent  Pieces. — The  rarest  are:  1793,  valued  at  $1 ; 

1796,  $10;  1831,  1836,  1840  to  1849  and  1852,  $4. 

APOSTOLIC  BULL. 

A  Bull  is  an  official  letter  from  the  Pope  of  Rome,  written 
on  parchment,  in  the  Latin  language  and  having  attached  to 
it  a  leaden  seal  impressed  with  the  images  of  Saint  Peter  and 
Saint  Paul.  It  is  the  form  of  apostolic  rescript  generally  used 
in  legal  matters.  There  are  two  other  kinds  of  papal  edicts 
known  as  the  Brief  and  the  Signature.  When  the  Bull  grants 
a  favor  the  leaden  seal  is  attached  by  means  of  silken  cords: 
when  it  directs  an  execution  to  be  performed,  with  flax  cords. 

LEGAL   HOLIDAYS. 

New  Year's  Day..— Jan.  1. — In  all  States  and  Territories 
except  Arkansas,  Delaware,  Georgia,  Kentucky,  Maine,  Mas- 
sachusetts, New  Hampshire,  North  Carolina,  South  Carolina 
and  Rhode  Island. 

Anniversary  of  the  Battle  of  New  Orleans. — Jan.  8. — In 
Louisiana. 

Lincoln's  Birthday. — Feb.  12. — In  Louisiana. 

Washington 's  Birthday. — Feb.  22. — In  all  States  and  Ter- 
ritories except  Alabama,  Arkansas,  Florida,  Illinois,  Iowa,  In- 
diana, Kansas,  Maine,  Missouri,  North  Carolina,  Ohio,  Texas, 
Oregon  and  Tennessee. 


462 


MISCELLANEOUS. 


Shrove  Tuesday. — March  1. — In  Louisiana  and  cities  of 
Mobile,  Montgomery  and  Selma,  Ala. 

A?iniversary  of  Texan  Independence. — March  2. — In  Texas. 

Firemen  s  Anniversary . — March  4. — in  Louisana. 

Good  Friday. — April  15. — In  Florida,  Louisana,  Minnesota 
and  Pennsylvania. 

Memorial  Day. — April  26. — In  Georgia. 

Battle  of  San  Jacinto. — April  21. — In  Texas. 

Decoration  Day. — May  30. — In  Colorado,  Maine,  Vermont, 
Connecticut,  Michigan,  New  Hampshire,  New  Jersey,  Rhode 
Island,  New  York,  Pennsylvania  and  District  of  Columbia. 

Fourth  of  July. — In  all  States  and  Territories. 

General  Election  Day. — Generally  on  Tuesday  after  the 
first  Monday  in  November  is  a  legal  holiday  in  California, 
Maine,  Missouri,  New  Jersey,  New  York,  Oregon,  South  Car- 
olina and  Wisconsin. 

Thanksgiving  Day. — Usually  last  Thursday  in  November 
and  Fast  days  whenever  appointed  by  the  President  are  legal 
holidays  in  all  the  States  and  Territories. 

Christmas  Day. — Dec.  25. — In  all  States  and  Territories. 


VALUE  OF  FOREIGN  MONEY  IN  GOLD. 

Pound  Sterling, 

.     England, 

$4.84 

Guinea, 

<< 

5-05 

Crown, 

tt 

1. 21 

Shilling, 

t< 

.22 

Napoleon, 

.     France,  .... 

3-84 

Five  Francs, 

<< 

•93 

Franc, 

<< 

.18 

Thaler, 

Saxony, 

.68 

Guilder,    . 

.     Netherlands,  . 

.40 

Ducat,  . 

Austria, 

2.28 

Florin, 

<< 

.48 

WEATHER  SIGNAL   FLAGS 


463 


Doubloon,     . 

Spain, 

■    $15-54 

Real, 

<< 

.05 

Five  Rubles, 

Russia, 

3-95 

Ruble, 

a 

•75 

Franc,  . 

Belgium,     . 

.18 

Ducat, 

.     Bavaria, 

2. 27 

Franc,  . 

Switzerland, 

.18 

Crown, 

.     Tuscany, 

1.05 

Ten  Thalers, 

Germany,  . 

790 

Ten 'Mark, 

<« 

2.38 

Krone,  (crown),    . 

<< 

664 

Twenty  Lire,    . 

.     Italy, 

3.84 

WEATHER   SIGNAL   FLAGS   OF  THE   UNITED   STATES. 

There  are  four  flags  used  by  the  United  States  Government 
at  Weather  Signal  Stations  to  signal  the  approaching  state  of 
the  weather. 

No.  1.  No.  2.  No.  3.  No.  4. 

White  Flag-  Blue  Flag. 


Black  Triangular       White  Flag  with 

Flag.  black  square  in  center. 


P   ► 


Clear  or  Fair 
Weather. 


Rain  or  Snow. 


Temperature 
Signal. 


Cold  Wave. 


No.  i  is  a  plain  white  flag,  6  ft.  square,  indicating  clear  or 
fair  weather.  No.  2  is  a  plain  blue  flag,  6  ft.  square,  indicating 
rain  or  snow.  No.  3  is  a  black  triangular  flag,  4  ft.  at  base 
and  6  ft.  long,  for  temperature.  No.  4  is  a  white  flag,  6  ft. 
square,  with  a  black  square  center,  called  the  cold  wave  flag. 
It  indicates  the  approach  of  a  sudden  and  considerable  fall  in 
temperature  and  is  usually  ordered  out  twenty-four  hours  or 
more  in  advance  of  the  cold  wave.  It  is  not  displayed  unless 
a  temperature  of  45  degrees  or  lower  is  expected.     Nos.  3  and 


464  MISCELLANEOUS. 

4  are  never  put  out  together.  No.  3  is  always  displayed  with 
either  No.  1  or  No.  2  or  sometimes  with  both.  The  flags  gen- 
erally are  attached  to  perpendicular  poles  and  then  are  to  be 
read  downward  from  the  top.  When  No.  3  is  placed  over  1 
or  2  it  indicates  warmer  weather;  when  below  it,  it  indicates 
cooler  weather.  When  No.  3  is  not  displayed  the  indications 
are  that  the  temperature  will  remain  unchanged. 

DISPLAYS   INTERPRETED. 

No.  i,  alone,  fair  weather,  stationary  temperature. 
No.  2,  alone,  rain  or  snow,  stationary  temperature. 
No.  3  above  No.  i,  fair  weather,  warmer. 
No.  3  above  No.  2,  rain  or  snow,  warmer. 
No.  3  below  No.  1,  fair  weather,  colder. 
No.  3  below  No.  2,  rain  or  snow,  colder. 
No.  4  below  No.  1 ,  fair  weather,  cold  wave. 
No.  3  on  top,  followed  by  1  and  2  in  order,  warmer,  fair 
weather,  followed  by  rain  or  snow. 

THE   GUILLOTINE. 

Executions  of  condemned  criminals  were  performed  in 
olden  time  by  cutting  the  head  off  with  a  sword  or  an  axe. 
The  victim's  head  was  generally  placed  upon  a  large  block  of 
wood  and  severed  from  the  body  by  a  blow  of  the  axe  in  the 
hands  of  the  official  headsman.  In  1789  Guillotin,  a  French 
physician,  proposed  to  the  Constituent  Assemby  to  abolish  the 
usual  brutal  mode  of  execution  and  use  machinery,  although 
he  did  not  invent  the  machine.  In  1792  Dr.  Antoine  Louis 
invented  the  machine  which  beheads  a  person  by  a  single  fall 
of  a  cutter  or  blade  which  is  raised  to  position  by  a  cord  and 
let  fall  upon  the  neck  of  the  victim  who  has  been  fastened  in 
position.  The  machine  was  at  first  called  Louison  or  Louisette, 
after  its  inventor,  but  a  satirical  song  published  in  a  royalist 


SHORT   RULES    FOR   INTEREST.  465 

newspayer  of  the  day  used  the  word  Guillotine  and  this  soon 
superseded  the  others. 

SHORT  RULES  FOR  INTEREST. 

First,  express  the  entire  time  in  days. 

Second,  multiply  the  principal  by  the  number  of  days. 

Third,  divide  this  product  according  to  the  rate  as  follows: 

For  3  per  cent,  by  1 20. 

For  4  per  cent,  by  90. 

For  5  per  cent,  by  72. 

For  6  per  cent,  by  60. 

For  7  per  cent,  by  51?. 

For  8  per  cent,  by  45. 

For  9  per  cent,  by  40. 

For  10  per  cent,  by  36. 

For  1 2  per  cent,  by  30. 

As  the  divisor  is  fractional  in  the  case  of  7  per  cent,  it  is 
simpler  to  find  the  rate  at  6  per  cent,  and  increase  it  by  one- 
sixth  of  itself. 

Reason  of  the  Rule. — The  interest  of  any  sum  at  one  per 
cent,  can  be  obtained  for  any  number  of  days  by  multiplying 
that  sum  by  the  days  and  dividing  by  360,  pointing  off  two 
decimal  places  for  the  one  per  cent.  This  analysis  of  the 
operation  would  be  different  but  would  bring  the  same  result. 
Take  an  example:  Interest  on  $20  for  96  days  at  i#.  One 
per  cent,  of  $20  for  one  year  (360  days)  is  20  cents;  for  one 
day  it  is  ^  of  20  cents  or  ,'8  cent;  for  96  days  it  is  96  times  as 
much  as  for  one  day  or  %  =  $}i  cents.  Now,  since  the  figures 
are  not  changed  by  multiplying  by  1  per  cent.,  omit  that  oper- 
ation. Then  as  the  result  is  the  same  whether  you  multiply 
by  the  number  of  days  last  or  first,  perform  this  multiplication 
first,  dividing  by  360  afterwards.  This  gives  the  same  result, 
but  if  the  rate  were  always  one  it  would  not  matter  which  op- 
30 


466  MISCELLANEOUS. 

eration  were  performed  first.  Now,  the  interest  at  6  per  cent, 
is  six  times  as  much  as  at  i  per  cent.  But  instead  of  multi- 
plying your  result  by  six  take  a  short  cut  before  j-ou  get  the 
result  and  divide  your  product  of  dollars  and  days  by  60,  in- 
stead of  360,  because  you  know  that  dividing  the  divisor  has 
the  same  effect  upon  the  quotient  as  multiplying  the  dividend 
by  the  same  number,  and  60  is  obtained  by  dividing  360  by  6, 
the  rate.  And  observe  that  all  those  divisors  above  are  ob- 
tained by  dividing  360  by  the  rate  per  cent,  required,  and  in 
this  way  you  can  remember  the  rule. 

So  that  the  rule  might  be  condensed  for  any  rate  as  fol- 
lows: Multiply  the  principal  by  the  time  in  days.  Divide  this 
by  the  number  obtained  b3'  dividing  360  by  the  required  rate, 
and  point  off  two  decimal  places  in  the  quotient  more  than  are 
already  there. 

MASON   AND    DIXON'S   LINE. 

This  celebrated  line  is  the  southern  boundary  of  Pennsyl* 
vania,  separating  it  from  the  States  of  Maryland  and  Virginia. 
It  was  run,  with  the  exception  of  about  twenty-two  miles,  by 
Charles  Mason  and  Jeremiah  Dixon,  two  English  surveyors, 
between  Nov.  15,  1763,  and  December  26,  1767,  and  separated 
at  that  time  slave  and  free  territory.  John  Randolph,  of  Vir- 
ginia, was  the  first  to  give  the  line  prominence,  using  the  ex- 
pression frequently  in  the  heated  debates  that  arose  in  Con- 
gress on  the  question  of  excluding  slavery  from  Missouri.  The 
newspapers  of  the  country  caught  up  the  phrase  and  it  gained 
a  celebrity  which  it  still  retains,  though  now,  since  the  aboli- 
tion of  slavery,  only  a  historical  reminiscence. 

THE  PRESIDENT — HOW  HE  IS  CHOSEN. 

The  people  do  not  vote  directly  for  President  and  Vice- 
President  in  an  election  for  those  officers  in  the  United  States. 
They  cast  their  ballots  for  certain  men,  called  electors,  previ- 
ously selected  at  a  convention  of  each  party,  who  at  the  proper 


THE   PRESIDENT — HOW   HE   IS  CHOSEN.  467 

time  cast  their  vote  for  President  and  Vice-President.  This 
body  of  Electors  is  called  the  Electoral  College.  Each  party 
has  an  electoral  ticket  in  each  State — as  many  electors  as  the 
State  has  members  in  Congress,  Senators  and  Representatives 
combined.  The  names  of  the  electors  are  printed  on  each 
party's  ticket.  The  names  of  the  candidates  for  President 
and  Vice-President  of  each  party  generally  stand  at  the  head  of 
the  electoral  ticket.  The  candidate  of  each  party  for  President 
and  Vice-President  is  selected  at  a  general  convention  of  the 
party  usually  four  or  five  months  prior  to  the  election.  Al- 
though the  names-  of  the  men  desired  for  President  and  Vice- 
President  stand  at  the  head  of  the  electoral  ticket,  the  people 
do  not  in  reality  vote  for  them  but  for  the  electors  whose 
names  follow.  The  electoral  ticket  in  each  State,  which  re- 
ceives the  highest  number  of  votes  of  the  people,  is  the  one 
chosen  and  they  are  entitled  to  cast  their  votes  for  the  candi- 
date of  the  party.  This  popular  election  takes  place  on  the 
Tuesday  after  the  second  Monday  in  November  every  fourth 
year.     The  year  1888  was  a  presidential  election  year. 

As  soon  as  it  is  finally  and  definitely  ascertained,  according 
to  the  laws  in  each  State  for  such  ascertainment,  who  are 
chosen  electors,  the  executive  officer  of  the  State  shall  com- 
municate, under  seal  of  the  State,  to  the  Secretary  of  State  of 
the  United  States,  a  certificate  of  such  ascertainment  of  the 
electors  appointed,  stating  names  of  electors  and  number  of 
votes  each  received.  The  executive  shall  also  deliver  to  the 
electors  of  his  State  on  or  before  the  second  Monday  in  Jan- 
uary the  same  certificate  in  triplicate,  under  the  seal  of  the 
State.  And  the  electors  shall  enclose  and  transmit  these  cer- 
tificates to  the  seat  of  government  in  the  same  way  and  at  the 
same  time  as  is  provided  for  transmitting  by  them  to  the  seat 
of  government  of  the  lists  of  all  persons  voted  for  by  them  as 
President  and  Vice-President. 


468  MISCELLANEOUS. 

The  electors  who  are  chosen  will  meet  in  each  State  at  the 
Capitol  on  the  second  Monday  in  January  following  the  popu- 
lar election  and  cast  their  ballots  for  President  and  Vice-Presi- 
dent. As  a  matter  of  law  there  is  nothing  to  prevent  these 
electors  from  casting  their  ballots  for  whom  they  please,  but 
as  a  matter  of  custom  and  public  trust  they  always  cast  their 
ballots  for  the  previously  selected  candidates  of  their  party. 
It  is  impossible  to  tell  what  a  breach  of  faith  on  the  part  of  an 
elector  would  bring  about,  especially  if  it  changed  the  result 
and  elected  the  opposing  candidate.  The  wrath  of  the  out- 
raged people  would  be  terrible  and  might  result  in  civil  war  if 
an  adjustment  were  not  speedily  made. 

When  the  ballots  of  the  electors  have  been  cast  certificates 
of  the  vote  are  made  out  in  triplicate.  One  cop}'  is  sent  to  the 
President  of  the  Senate  at  Washington  by  mail.  A  second 
cop)?  is  sent  him  by  special  messenger.  A  third  copy  is  pre- 
served and  filed  with  the  State  archives.  The  copy  sent  to 
Washington  by  special  messenger  is  the  one  used  by  Congress 
in*  counting  the  vote  unless  it  should  be  lost,  when  the  other 
is  used.  On  the  second  Wednesday  in  Februar)'  the  Senate 
and  House  of  Representatives  shall  meet  at  one  o'clock  in  the 
afternoon  in  the  hall  of  the  House  of  Representatives  in  joint 
session,  for  the  purpose  of  counting  the  electoral  vote.  The 
President  of  the  Senate  is  the  presiding  officer.  Two  tellers 
are  appointed  previously  by  the  Senate  and  two  by  the  House. 

The  President  of  the  Senate  opens  the  returns  from  the 
States  in  alphabetical  order,  beginning  with  the  letter  A,  and 
as  each  one  is  opened  hands  it  to  the  tellers,  who  read  it  in  the 
hearing  of  the  two  Houses  and  make  a  list  of  the  votes  as 
they  shall  appear  from  the  certificates.  When  the  votes  have 
been  thus  ascertained  and  counted,  the  result  of  the  same  is 
delivered  to  the  President  of  the  Senate  "who  shall  thereupon 
announce  the  state  of  the  vote,  which  announcement  shall  be 


THE   UNITED   STATES  CONGRESS.  469 

deemed  a  sufficient  declaration  of  the  persons,  if  any,  elected 
President  and  Vice-President  of  the  United  States."  The  re- 
sult with  a  li.«t  of  the  votes  is  entered  upon  the  Journal  of  the 
two  Houses. 

If  it  appears  upon  the  counting  of  the  electoral  votes  tint 
no  candidate  has  a  majority  of  all  the  votes  cast,  which  must 
now  be  at  least  201,  as  there  are  401  votes  in  the  Electoral  Col- 
lege, then  the  election  goes  into  the  House  of  Representatives 
and  they  must  select  a  President  from  the  persons  (not  exceed- 
ing three)  who  have  received  the  most  electoral  votes  for 
President.  If  the  election  of  President  is  thrown  into  the 
House,  the  vote  there  is  by  States,  each  State  having  one  vote. 
So  that  the  dominant  party  in  the  House  is  not  sure  of 
electing  their  candidate;  the  party  will  succeed  that  controls 
a  majority  of  the  State  delegations. 

When  the  two  bodies  are  assembled  to  count  the  vote,  the 
President  of  the  Senate  occupies  the  Speaker's  chair;  the 
Speaker  of  the  House  sits  at  his  left  hand;  the  Senators  in  a 
body  upon  the  right  of  the  presiding  officer;  the  members  of 
the  House  in  the  body  of  the  Hall  not  provided  for  Senators; 
the  tellers,  Secretary  of  the  Senate  and  Clerk  of  the  House  of 
Representatives  at  the  Clerk's  desk ;  the  other  officers  of  the 
two  Houses  in  front  of  the  Clerk's  desk. 

The  joint  meeting  to  count  the  vote  shall  not  be  dissolved 
until  the  count  of  electoral  votes  shall  be  completed  and  de- 
clared. 

THE    UNITED   STATES   CONGRESS. 

Congress  is  the  law  making  body  of  the  United  States. 
Congress  is  composed  of  two  branches,  sometimes  called  the 
Upper  and  Lower  Houses,  but  properly  the  Senate  and  House 
of  Representatives. 

The  Senate. — The  Senate  or  Upper  House  is  composed  of 
two  members  from  each  State  in  the  Union.     It  has  contained 


470  MISCELLANEOUS. 

for  a  number  of  years,  therefore,  76  members,  and  will  now 
contain,  as  soon  as  the  four  new  States  send  their  Senators,  84 
members.  A  Senator's  term  of  office  is  six  years.  The  mem- 
bers are  arranged  into  three  classes,  so  that  the  terms  of  one- 
third  of  the  Senators  expire  every  two  years.  These  classes 
were  arranged  at  the  original  organization  of  the  Senate  and 
the  class  into  which  an)^  Senator  fell  was  determined  by  lot. 
Some  of  the  first  Senators  had  two  year  terms,  some  four  year 
terms  and  some  six  year  terms,  but  all  their  successors  were 
elected  for  six  years.  When  a  new  State  is  admitted  her  Sen- 
ators take  their  places  in  the  next  classes  in  which  there  is  a 
vacancy,  deciding  the  long  and  short  term  between  them  by 
lot.  The  Vice-President  of  the  United  States  is  the  presiding 
officer  of  the  Senate.  He  is  called  the  President  of  the  Senate 
and  is  addressed  "Mr.  President."  The  Senate  usually  elects 
a  President  pro  tempore,  who  acts  as  President  in  the  absence 
of  the  Vice-President  of  the  United  States.  The  Senators  are 
elected  by  the  States  which  they  represent.  They  are  elected 
usually  by  the  State  Legislature,  although  each  State  may 
provide  its  own  method  of  selecting  them  within  certain 
limits.  The  salary  of  a  Senator  is  $5,000  a  year.  The  salary 
of  the  Vice-President  of  the  United  States  and  of  the  Presi- 
dent pro  tern,  of  the  Senate  is  $8,000  a  3rear. 

House  of  Representatives. — The  membership  of  the  House 
of  Representatives  depends  upon  the  population  of  the  coun- 
try. Once  every  ten  years  a  census  is  taken  and  as  soon  as 
the  exact  number  of  people  in  the  whole  country  is  definitely 
ascertained  Congress  fixes  a  ratio  of  Representation.  This 
ratio  will  determine  the  number  of  Representatives  to  which 
each  State  is  entitled.  The  ratio  now  is  133,000,  that  is,  each 
State  is  entitled  to  one  Representative  for  every  133,000  of 
population.  This  ratio  has  been  gradually  increased  since  the 
organization  of  the  government.  Every  decade  it  has  been  found 


THE    UNITED   STATES   CONGRESS  471 

necessary  to  increase  the  ratio  of  representation,  else  the  House 
of  Representatives  would  become  so  large  and  unwieldy  a  body 
that  the  business  of  the  government  would  be  obstructed  by 
it  rather  than  facilitated.  As  soon  as  it  is  determined  how 
many  Representatives  each  State  is  entitled  to,  then  the  vState 
is  divided  into  a  corresponding  number  of  districts,  called 
Congressional  districts.  This  dividing  into  districts  is  done 
by  the  State  Legislature.  Members  of  the  House  of  Repre- 
sentatives are  then  elected  in  these  districts,  one  in  each  dis- 
trict, by  popular  vote,  for  a  term  of  two  years.  It  is  not  nec- 
essary for  a  member  of  the  House  to  reside  in  the  district 
from  which  he  is  elected,  although  it  is  customary  for  him  to 
do  so.     He  must  be  a  resident  of  the  State. 

The  House  of  Representatives  elects  its  own  presiding  offi- 
cer. He  is  called  the  Speaker  and  is  addressed  "  Mr.  Speaker." 
His  salary  is  $8,000  a  year.  The  salary  of  a  member  of  the 
House  of  Representatives  is  $5,000  a  year.  Senators  and  Rep- 
resentatives are  allowed  $125  a  year  for  stationary  and  20  cents 
per  mile  for  travel  to  and  from  Washington,  each  annual 
session. 

Law  Making.  —Laws  may  originate  either  in  the  Senate  or 
House  of  Representatives,  except  measures  for  the  appropria- 
tion of  money  which  must  originate  in  the  House  of  Represen- 
tatives. The  practical  work  of  Congress  is  largely  done  by 
committees.  When  a  measure  is  introduced  it  is  called  a  bill. 
If  it  originates  in  the  House  of  Representatives  it  is  called 
"House  Bill,"  which  in  writing  is  generally  abbreviated  to 
"H.  B."  If  it  originates  in  the  Senate  it  is  called  "Senate 
Bill,"  written  "S.  B."  Each  bill  is  also  numbered  and  given  a 
title  which  conveys  briefly  some  import  of  the  scope  and  in- 
tent of  the  bill.  There  are  a  great  many  standing  committees 
for  different  kinds  of  work  and  when  a  bill  is  introduced  it  is 
always  referred  to  one  of  these  committees — the  one  in  whose 


472  MISCELLANEOUS. 

field  of  labor  it  most  naturally  falls.  The  committee,  after 
examining  the  bill  and  considering  the  subject  in  all  its  bear- 
ings, reports  back  to  the  House  or  Senate,  as  the  case  may  be, 
with  recommendations.  Many  bills  get  into  the  hands  of  a 
hostile  committee  and  never  see  daylight  again;  they  are 
"pigeon-holed"  in  the  committee  room,  which  means  that  the 
committee  or  the  Chairman  of  the  committee  who  has  very 
large  powers  in  these  matters,  is  not  friendly  to  the  measure 
and  will  not  make  any  report  on  it.  This  practically  kills  the 
bill  in  its  infancy. 

Hozv  a  Bill  becomes  Law. — A  bill  that  has  been  voted  upon 
in  either  branch  of  Congress  and  received  a  majority  of  votes 
is  then  signed  by  the  presiding  officer  and  sent  to  the  other 
branch.  Here  it  goes  to  a  committee  the  same  as  when  it  was 
first  introduced  in  the  other  branch.  If  it  comes  to  a  vote  in 
the  second  branch  and  receives  a  majority  of  the  votes  it  is 
signed  by  the  presiding  officer  of  that  body  and  sent  to  the 
President  of  the  United  States.  If  the  President  signs  it  the 
bill  has  become  a  law.  If  the  President  keeps  it  in  his  posses- 
sion for  ten  days,  not  counting  Sundays,  and  does  not  sign  it, 
the  bill  becomes  a  law.  If  the  President  returns  it  to  Con- 
gress without  his  signature  and  accompanied  by  his  objections 
to  the  measure,  called  his  veto,  then  it  is  again  put  to  vote  in 
Congress  and  if  it  receives  three-fourths  of  all  the  votes  cast 
in  each  branch  it  is  a  law  without  the  President's  signature. 
A  bill  has  a  hard  road  to  travel  to  become  a  law,  but  still  there 
are  some  laws  passed.  Perhaps  not  one  bill  in  fifty  becomes 
a  law. 

The  chances  of  the  death  of  a  bill  are  very  great.  It  must 
first  run  the  gauntlet  of  the  committee  rooms  where  it  is  in 
danger  of  being  strangled  to  death.  If  it  fails  of  a  majority 
in  either  house  it  is  dead.  If  the  President  veto  it  and  it  fail 
of  a  three-fourth  majority  in  either  House  it  is  dead. 


THE  UNITED  STATES  SUPREME   COURT.  473 

THE  UNITED  STATES  SUPREME  COURT. 

The  Supreme  Court  of  the  United  States  is  composed  of 
one  Chief  Justice  and  eight  Associate  Justices.  They  are 
appointed  by  the  President  and  confirmed  by  the  Senate.  The 
term  is  for  life  or  during  good  behavior.  The  Court  at  present 
is  composed  as  follows: 

Chief  Justice,      Melville  W.  Fuller,  111. 
Assoc.      "  Samuel  F.  Miller,  la. 

Stephen  J.  Field,  Cal. 
Joseph  P.  Bradley,  N.  J. 
John  M.  Harlan,  Ky. 
Stanley  Mathews,  O. 
"  "  Horace  Gray,  Mass. 

Samuel  Blatchford,  N.  Y. 
"  "  L.  Q.  C.  Lamar,  Miss. 

The  Court  Reporter  is  J.  C.  Bancroft  Davis,  of  New  York. 
The  Clerk  is  J.  H.  McKenney,  D.  C.  The  salary  of  the  Chief 
Justice  is  $10,500;  of  each  Associate  Justice  $10,000;  of  the 
Reporter  $5,700;  of  the  Clerk  $6,000. 

Justice  Mathews  died  March  22,  1889,  and  his  successor 
has  not  yet  been  appointed. 

APPOINTMENTS  TO  WEST  POINT  AND  NAVAL  ACADEMIES. 

The  cadets  at  West  Point  Military  Academy  are  appointed 
by  the  President  of  the  United  States  upon  the  recommenda- 
tion of  Representatives  in  Congress.  One  cadet  is  allowed  for 
each  congressional  district,  one  for  each  Territory  and  ten  for 
the  United  States  at  large.  Each  one  must  reside  in  the  Dis- 
trict or  Territory  from  which  he  is  appointed.  They  must  be 
not  under  seventeen  and  not  over  twenty-two  years  of  age, 
physically  perfect,  and  well  versed  in  reading,  writing  and 
arithmetic,  know  something  of  English  grammar,  descriptive 


BORN. 

WHEN 
APPOINTED. 

1888 

I8l6 

v       1862 

I8l6 

I863 

I8I3 

I87O 

1833 

1877 

1824 

l88l 

1828 

l88l 

I820 

1882 

1825 

I887 

474  MISCELLANEOUS. 

geography  and  United  States  history.  One  class  graduates 
every  year,  and  there  is  an  annual  appointment,  and  not  oftener, 
except  in  case  of  vacancy  through  death,  resignation  or  ex- 
pulsion. 

The  Naval  Academy  has  the  same  number  of  cadets  ap- 
pointed in  the  same  way,  from  persons  between  the  ages  of 
fourteen  and  eighteen  years.  The  physical  and  educational 
requirements  are  about  the  same. 

NATURALIZATION  LAWS  OF  THE  UNITED  STATES. 

The  law  providing  for  the  naturalization  of  foreigners  or 
aliens  as  citizens  of  the  United  States  and  providing  the  con- 
ditions under  which  this  may  be  done,  will  be  found  in  the 
Revised  Statutes  of  the  United  States,  Sections  2165  to  2174. 
Following  is  a  brief  resume  of  the  law : 

Declaration  of  Intention. — An  alien  who  desires  to  become 
a  citizen  of  the  United  States,  must  declare  upon  oath,  before 
a  Circuit  or  District  Court  of  the  United  States,  or  a  District 
or  Supreme  Court  of  the  Territories,  or  a  Court  of  Record 
of  any  of  the  States  having  common  law  jurisdiction,  and  a 
seal  and  clerk,  two  years  at  least  prior  to  his  admission  to 
citizenship  that  it  is,  bona  fide,  his  intention  to  become  a  citizen 
of  the  United  States,  and  to  renounce  forever  all  allegiance 
and  fidelity  to  any  foreign  prince  or  State,  and  particularly  to 
the  one  of  which  he  may  be  at  the  time  a  citizen  or  subject. 
It  is  not  necessary  to  make  this  declaration  of  intention  until 
the  expiration  of  three  years'  residence  in  the  United  States, 
although  it  may  be  done  at  any  time. 

Conditions  of  Citizenship. — If  it  shall  appear  to  the  satis- 
faction of  the  court  to  which  the  alien  applies  for  admission 
that  he  has  resided  continuously  within  the  United  States  for 
at  least  five  years,  and  within  the  State  or  Territory  where 
such  court  is  at  the  time  held,  one  year  at  least;  and  that  dur- 


NATURALIZATION    LAWS.  475 

ing  that  time  "he  has  behaved  as  a  man  of  good  moral  char- 
acter, attached  to  the  principles  of  the  Constitution  of  the 
United  States,  and  well  disposed  to  the  good  order  and  happi- 
ness of  the  same,"  he  will  be  admitted  to  citizenship. 

The  Final  Oath. — When  the  application  for  admission  is 
made,  the  alien  must  declare  upon  oath  before  some  one  of 
the  courts  above  specified  "that  he  will  support  the  Constitu- 
tion of  the  United  States,  and  that  he  absolutely  and  entirely 
renounces  and  abjures  all  allegiance  and  fidelity  to  every 
foreign  prince,  potentate,  State  or  sovereignty  of  which  he 
was  before  a  citizen  or  subject,"  which  proceedings  must  be 
recorded  by  the  clerk  of  the  court. 

Titles  of  Nobility. — If  the  applicant  has  borne  any  heredi- 
tary title  or  order  of  nobility  he  must  expressly  renounce  it 
when  he  makes  his  application  for  citizenship  in  the  United 
States. 

Children  of  Naturalized  Citizens. — All  the  children  of  nat- 
uralized parents  who  were  under  twenty-one  years  of  age 
when  their  parents  received  their  naturalization  papers,  are 
considered  citizens  without  the  process  of  naturalization  if 
they  reside  in  the  United  States.  All  those  over  twenty-one 
when  their  parents  obtain  their  papers,  must  be  naturalized, 
although  the  process  may  be  different  from  the  one  described 
above.     See  Minors  infra. 

Citizens'  Children  who  are  Born  Abroad. — The  children  of 
persons  who  now  are  or  have  been  citizens  of  the  United 
States  are  considered  citizens  even  if  they  are  born  in  foreign 
countries,  as  is  sometimes  the  case  when  people  are  traveling 
or  reside  temporarily  in  foreign  countries  as  representatives  of 
the  United  States. 

Minors. — Any  alien  who  has  resided  in  the  United  States 
three  years  next  preceding  his  arriving  at  the  age  of  twenty- 
one  years,  and  who  has  continued  to  reside  therein  to  the  time 


476  MISCELLANEOUS. 

he  may  make  application  to  be  admitted  a  citizen  thereof,  may, 
after  he  arrives  at  the  age  of  twenty- one  years,  and  after  he 
has  resided  five  years  within  the  United  States,  including  three 
years  of  his  minority,  be  admitted  a  citizen;  but  he  must 
make  a  declaration  or  oath  and  prove  to  the  satisfaction  of 
the  court,  that  for  two  years  next  preceding,  it  has  been  his 
bona  fide  intention  to  become  a  citizen. 

Soldiers. — Any  alien  twenty-one  j'ears  old,  or  more,  who 
has  been  in  the  armies  of  the  United  States  and  has  been 
honorably  discharged  therefrom,  may  become  a  citizen  on  his 
petition,  without  any  previous  declaration  of  intention,  pro- 
vided that  he  has  resided  in  the  United  States  at  least  one 
year  previous  to  his  application,  and  is  of  good  moral  char- 
acter. 

Naturalized  Citizens  Protected  Abroad. — "  All  naturalized 
citizens  of  the  United  States,  while  in  foreign  countries,  are 
entitled  to  and  shall  receive  from  this  Government,  the  same 
protection  of  persons  and  property  which  is  accorded  to 
native-born  citizens." — Section  2000,  U.  S.  Rev.  Slat. 
UNITED   STATES   POSTAL   REGULATIONS. 

All  matter  transmitted  through  the  mails  is  divided  into 
four  classes  and  the  rate  of  postage  depends  upon  the  class. 

First  Class  Mail  Matter,  Letters. — The  first  class  includes 
letters  and  anything  of  which  the  postmaster  can  not  ascertain 
the  contents  without  destroying  the  wrapper,  or  anything  un- 
sealed which  may  be  wholly  or  partly  in  writing,  except  man- 
uscript for  publication  accompanied  by  proof  sheets.  Rate  of 
postage,  two  cents  for  one  ounce  or  fraction  thereof  and  two 
cents  additional  for  each  additional  ounce  or  fraction.  On 
local  or  drop  letters  at  free  delivery  offices,  two  cents ;  where 
no  free  delivery  by  carriers,  one  cent. 

Second  Class,  Regular  Publications. — This  class  includes  all 
newspapers,  periodicals,  or  matter  exclusively  in  print  and 


POSTAL   REGULATIONS.  477 

regularly  issued  at  stated  periods  from  a  known  office  of  publi- 
cation or  news  agency.  Rates  of  postage,  one  cent  a  pound  or 
fraction  thereof.  Before  a  publisher  or  news  agent  can  avail 
himself  of  the  second  class  rates  of  postage  he  must  make  ap- 
plication to  the  Post  Office  Department  at  Washington  to  have 
his  publication  admitted  to  that  class.  The  Government  sup- 
plies blanks  for  this  purpose  and  the  local  Postmaster  can 
usually  furnish  them. 

Third  Class,  Miscellaneous  Printed  Matter. — Transient 
newspapers  and  periodicals,  one  cent  for  each  four  ounces  or 
fraction  thereof.  Mailable  matter  of  the  third  class  includes 
printed  books,  circulars  and  other  matter  wholly  in  print  (not 
of  second  class),  proof  sheets  and  manuscript  accompanying 
the  same,  and  postage  shall  be  paid  at  the  rate  of  one  cent  for 
each  two  ounces  or  fractional  part  thereof,  and  shall  fully  be 
prepaid  by  postage  stamps  affixed  to  said  matter. 

All  packages  of  matter  of  the  third  class  must  be  so 
wrapped  or  enveloped  that  their  contents  may  be  readily  and 
thoroughly  examined  by  postmasters  without  destroying  the 
wrappers. 

Fourth  Class,  Merchandise,  Samples,  etc. — Mailable  matter 
of  the  fourth  class  includes  all  matter  not  embraced  in  the 
first,  second  or  third  classes,  which  is  not  in  its  form  or  nature 
liable  to  destroy,  deface  or  otherwise  damage  the  contents  of 
the  mail  bag  or  harm  the  person  of  any  one  engaged  in  the 
postal  service.  Rate  of  postage,  one  cent  an  ounce  or  frac- 
tion thereof,  to  be  paid  by  stamps  affixed. 

Poisons,  explosives,  inflamable  articles,  live  animals,  in- 
sects or  substances  exhaling  a  bad  odor,  will  not  be  forwarded. 
Limit  of  weight  of  fourth-class  matter  (excepting  liquids)  four 
pounds. 

POSTAL,  CARDS.— One  cent  each  for  the  United  States; 
two  cents  each  for  foreign.  Anything  pasted  on  or  attached 
to  a  postal  card  subjects  it  to  letter  postage. 


478  MISCELLANEOUS. 

RATES   OF    POSTAGE   TO    FOREIGN    COUNTRIES. — CANADA. 

Letters,  per  ounce,  must  be  prepaid,  .         .         .  2c. 

Postal  cards,  each,  .         .         .         .         .         .  .     ic. 

Newspapers,  per  4  oz., ic. 

Samples  of  merchandise  not  exceeding  8  oz.,  .  .   10c. 

Registration  fee,  .         .         .         .         .         .         .  10c. 

The  correspondence  exchangeable  comprises  letters  (ordi- 
nary and  registered),  postal  cards,  newspapers,  pamphlets, 
magazines,  books,  maps,  plans,  engravings,  drawings,  photo- 
graphs, lithographs,  sheets  of  music,  etc.,  and  patterns  and 
samples  of  merchandise,  including  grains  and  seeds.  Any  ar- 
ticle of  correspondence  may  be  registered.  Patterns  and 
samples  are  construed  to  be  bona  fide  specimens  of  goods  on 
hand  and  for  sale,  having  no  intrinsic  value  aside  from  their 
use  as  patterns  and  samples.  The  weight  of  each  package  is 
limited  to  8  ounces,  and  the  postage  charge  is  ten  cents  per 
package,  prepayment  compulsory.  They  are  subject  to  the 
regulations  of  either  country  to  prevent  violations  of  the  rev- 
enue laws;  must  not  be  closed  against  inspection  and  must  be 
so  wrapped  and  enclosed  as  to  be  easily  examined. 

MEXICO. 

Letters,  newspapers,  printed  matter  and  samples  are  now 
carried  between  the  United  States  and  Mexico  at  same  rates 
as  in  the  United  States. 

COUNTRIES   OF  THE    UNIVERSAL   POSTAL   UNION. 

The  United  States  and  Canada  and  the  countries  in  the 
following  list  comprise  what  is  known  as  the  Universal  Postal 
Union.  The  rates  of  postage  from  the  United  States  or  Can- 
ada to  any  one  of  these  countries  are  as  follows : 


POSTAL   UNION. 


479 


Letters,  per  15  grains  (y2  ounce),  prepayment  optional,     .  5c 

Postal  cards,  each, 2c. 

Newspapers  and  other  printed  matter,  per  2  oz.,       .         .  ic. 

!    Packets  not  in  excess  of  10  oz.,  5c. 
Packets  in  excess  of  10  oz.,  for 

each    2   oz.    or   fraction   thereof,  ic. 

(   Packets  not  in  excess  of  4  oz.,  2c. 
Samples  of  merchandise  -<    Packets  in  excess  of  4  oz.,  for 

(.  each  2  oz.  or  fraction  thereof,  ic. 

Registration  fee  on  letters  or  other  articles,         .         .  10c. 
All  correspondence  other  than  letters  must  be  prepaid,  at 
least,  partially. 


COUNTRIES   OF  THE 

Argentine  Republic. 

Austria-Hungary. 

Bahamas. 

Barbadoes. 

Belgium. 

Bermudas. 

Bolivia. 

Brazil. 

British  Colonies  on  West  Coast 

Africa. 
British  Colonies  in  West  Indies. 
British  Guiana. 
British  Honduras. 
British  India. 
Bulgaria. 
Ceylon. 
Chili. 

Columbia,  U.  S.  of. 
Costa  Rica. 
Congo.  State  of. 
Denmark. 
Dominica. 
Ecuador. 
Egypt. 


UNIVERSAL   POSTAL   UNION. 

France,  including  Algeria,  Mon- 
aco, Tunis,  Tangier,  Cambodia 
and  Tonquin. 

French  Colonies:— i.  In  Asia: 
French  establishments  in  India, 
and  Cochin,  China.  2.  In  Africa: 
Senegal  and  dependencies,  Re- 
union, Madagascar.  3.  In  Amer- 
of  ica:  French  Guiana,  Gaudaloupe, 
Martinique,  St.  Bartholomew, 
St.  Pierre.  4.  In  Oceanica :  New 
Caledonia,  Tahiti,  Marquesas 
Islands,  Gambier. 

Germany. 

Great  Britain  and  Ireland. 

Gibralter  and  Cypress. 

Greece. 

Greenland. 

Guatemala. 

Hayti. 

Hawaii. 

Honduras. 

Hong  Kong. 

Italy. 


480 


MISCELLANEOUS. 


Iceland. 

Jamaica. 

Japan  and  Jinsen  (Corea). 

Liberia. 

Luxemburg. 

Montenegro. 

Netherlands. 

Netherlands  Colonies : — i.  In 
Asia :  Borneo,  Sumatra.  Java, 
Celebes.  2.  In  Oceanica  :  New 
Guinea.  3.  In  America :  Suri- 
nam, Curacoa,  St.  Eustatius. 

Newfoundland. 

Nicaraugua. 

Norway. 

Nubia,  Soodan. 

Paraguay. 

Patagonia,  Eastern  part. 

Persia. 

Peru. 

Portugal,  including  Madeira  and 
the  Azores. 

Portuguese  Colonies: — 1.  In 
Asia.  2.  In  Africa :  Cape  Verde, 
Mozambique. 

Roumania. 


Russia,  including  Finland. 

Salvador. 

San  Marino. 

Servia. 

Siam. 

Spain,  including  the  Canary  Is- 
lands, the  Spanish  possessions 
on  the  North  coast  of  Africa,  the 
Republic  of  Andorra  and  tht 
postal  establishments  of  Spain 
on  the  West  coast  of  Morocco. 

Spanish  Colonies  : — 1.  In  Africa : 
Fernando  Po.  2.  In  America: 
Cuba  and  Porto  Rico.  3.  In 
Oceanica:  Ladrone  and  the  Caro- 
line Islands.  4.  In  Asia:  The 
Phillippine  Archipelago. 

Straits  Settlements  (Singapore,  Pe- 
nang  and  Mallacca.) 

St.  Thomas,  W.  I. 

Sweden. 

Switzerland. 

Trinidad,  W.  I. 

Turkey,  European  and  Asiatic. 

Uruguay. 

Venezuela. 


THE   ARMY.  481 

COUNTRIES  NOT  OF  THE  UNIVERSAL  POSTAL  UNION. 


COUNTRIES. 


Letters  per 
yi  ounce. 

Newspapers 
per  2  ounces. 

5 

* 

12 

2 

15 

4 

5 

2 

23 

6 

15 

3 

15 

4 

12 

2 

12 

2 

15 

4 

12 

2 

15 

4 

21 

5 

12 

2 

Australia,    except  N.   S.   Wales,   Queensland 

and  Victoria,  via  San  Francisco 

Australia,  all  parts  via  London  and  Brindisi. . 

Cape  Colony 

China  via  San  Francisco 

Fiji  Islands  via  San  Francisco 

Madagascar  (except  French  Stations) 

Morocco  (except  Spanish  possessions) 

Natal 

New  South  Wales 

New  Zealand  via  London.         

Orange  Free  State   

Queensland 

St.  Helena 

Transvaal ' 

Victoria,  Australia 


Registration  allowed  on  letters  to  Australia  and  New  Zea- 
land, 10  cents ;  on  all  mail  matter  to  South  African  colonies 
and  States,  10  cents. 

THE   ARMY. 

Officers. — The  highest  office  in  the  army  is  that  of  General. 
Grant  became  General,  then  Sherman,  then  Sheridan,  although 
the  act  of  Congress  conferring  this  distinction  upon  Sheridan 
was  only  passed  a  few  days  before  his  death.  There  is  no 
General  of  the  U.  S.  armies  at  the  present  time.  W.  T.  Sher- 
man is  on  the  retired  list  and  the  only  one  living  who  has 
been  Generpi  The  next  highest  office  is  Lieutenant-General. 
All  who  have  been  General  have  first  of  course  been  Lieuten- 
ant-General. There  is  no  Lieutenant-General  at  the  present 
time. 
31 


482  MISCELLANEOUS. 

The  next  in  rank  is  Major-General.  There  are  three,  of 
whom  John  M.  Schofield  is  Major-General  commanding.  The 
others  are  Oliver  O.  Howard  and  George  Crook. 

Next  in  rank  is  Brigadier-General.  There  are  now  six, 
viz:  Thos.  H.  Ruger,  Nelson  A.  Miles,  Wesley  Merritt,  David 
S.  Stanley,  John  Gibbon,  John  R.  Brooke. 

The  following  are  stationed  at  Washington,  D.  C,  with  the 
rank  and  pay  of  Brigadier :  Richard  C.  Drum,  Adj.JGen., 
Samuel  B.  Holabird,  Quar.-Gen.,  Wm.  B.  Rochester,  Pay.-Gen., 
Robert  Macfeeley,  Commissary-Gen.,  John  Moore,  Surg.-Gen., 
A.  W.  Greely,  Chief  Signal  Officer,  Stephen  V.  Benet.  Chief 
of  Ordnance,  Thos.  L,.  Casey,  Chief  of  Engineers,  Roger 
Jones,  Inspector-Gen.,  D.  G.  Swaim,  Judge-Advocate-Gen. 

Retirement. — All  officers  of  the  regular  army  are  now  re- 
tired by  act  of  1882  on  full  pay  at  the  age  of  sixty-four.  The 
retirement  up  to  the  close  of  1895  will  be  as  follows:  Paymas- 
ter-General Rochester,  Feb.  15,  1890;  Quartermaster-General 
Holabird,  June  16,  1890;  Commissary-General  Macfeeley,  July 
1,  1890;  Surgeon-General  Moore,  Aug.  16,  1890;  Chief  of  Ord- 
nance Benet,  Jan.  22,  1891;  Brigadier-General  Gibbon,  April 
20,  1 891;  Brigadier-General  Stanley,  June  1,  1892;  Major-Gen- 
eral Crook,  Sept.  8,  1893;  Major-General  Howard,  Nov.  8, 
1894;  Inspector-General  Jones,  Feb.  25,  1895;  Chief  of  Engi- 
neers Casey,  May  10,  1895;  Major-General  Schofield,  Sept.  29, 

i895- 

The  United  States  is  divided  into  three  military  divisions 
and  six  military  departments.  The  divisions  are:  1.  The  At- 
lantic. 2.  The  Missouri.  3.  The  Pacific.  First  division  in- 
cludes all  States  east  of  the  Mississippi  river,  except  Illinois. 
Third  division  includes  California,  Nevada,  Arizona,  New 
Mexico,  Oregon,  Washington,  Idaho  and  Alaska.  Second 
division  all  the  rest  of  the  United  States. 

Organization. — The  army  of  the  United  States  now  con- 
sists of  the  following  forces,  officers  and  men : 


THE   NAVY.  483 

OFFICERS.  nURIB  Ml  N 

Ten  cavalry  regiments,  437  6,842 

Five  artillery  regiments,  283  2.437 

Twenty-five  infantry  regiments,  885  10,563 

Engineer  battallion,  recruiting  parties, 
ordnance  department,  hospital  ser- 
vice, Indian  scouts,  West  Point,  Sig- 
nal detachment  and  general  service,       583  4707 

Total,  2,188  24,549 

Grand  total  officers  and  men,  26,737 

Officers'  Pay. — General,  $13,500;  Lieutenant-General ,  $11,- 
000;  Major-General,  $7,500;  Brigadier-General,  $5,500;  Col- 
onel, $3,500;  Lieut.-Colonel,  $3,000;  Major,  $2,500;  Captain, 
mounted,  $2,000;  Captain,  not  mounted,  $1,800;  Regimental 
Adjutant,  $1,800;  Regimental,  Q.  M.,  $1,800;  1st  Lieutenant, 
mounted,  $1,600;  1st  Lieutenant,  not  mounted,  $1,500;  2nd 
Lieutenant,  mounted,  $1,500;  2nd  Lieutenant,  not  mounted, 
$1,400;  Captain,  $1,500. 

NAVY. 

Officers. — The  highest  office  in  the  navy  is  that  of  Admiral, 
at  present  filled  by  David  D.  Porter.  Next  in  rank  is  Vice- 
Admiral,  Stephen  C.  Rowan.  Next  is  Rear-Admiral  of  whom 
there  are  seven,  Jas.  A.  Greer,  Lewis  A.  Kimberly,  Ralph 
Chandler,  Stephen  B.  Luce,  James  H.  Gillis,  James  E.  Jouette 
and  Bancroft  Gherardi. 

Retirement. — Officers  of  the  navy  are  retired  after  forty 
years'  service  or  at  age  of  sixty-two,  or  from  incapacity  result- 
ing from  long  and  faithful  service,  from  wounds,  sickness,  etc., 
on  three-fourths  of  sea-pay  of  the  rank  held  at  retirement. 

Pay. — The  pay  of  naval  officers  varies  according  to  the 
duty  they  are  performing  as  follows: 


484 


MISCELLANEOUS. 


RANK. 

AT  SEA. 

ON  SHORE. 

ON  LEAVE. 

Admiral, 

$13,000 

$13,000 

$13,000 

Rear  Admiral, 

9,000 

8,000 

6,000 

Commodore, 

5,000 

4,000 

3,000 

Captain, 

4.5OO 

3.500 

2,800 

Commander, 

3.500 

3,000 

2,300 

Lieutenant-Corn., 

2,800 

2,400 

2,000 

Lieutenant, 

2,400 

2,000 

I,600 

Master, 

1,800 

I,500 

1,200 

Ensign, 

1,200 

1,000 

8OO 

Midshipman, 

I.OOO 

8OO 

6OO 

Surgeon,                \ 
Paymaster,             > 
Chief  Engineer,    ) 

2,800 

2,400 

2,000 

Fleet  Surgeon,      \ 
Paymaster,             > 
Chief  Engineer,    ) 

4,400 

4,400 

4,400 

Passed  Ass't  Surgeon,    ") 
Paymaster,                        > 
Chief  Engineer,              ) 

2,000 

1,800 

1,500 

Assistant  Surgeon,    *) 
Paymaster,                  > 
Chief  Engineer,         ) 

1,700 

1,400 

1,000 

Chaplain, 

2,500 

2,000 

1,600 

Professor  of  Mathematics 
and  Civil  Engineer, 

2,400 

2,400 

1,500 

POPULATION   OF  THE   UNITED   STATES. 


The  first  census  was  taken  in  1790  and  showed  a  popula- 
tion of  3,928,037.  The  growth  of  the  country  as  shown  by 
the  succeeding  censuses  has  been  as  follows; 


INTEREST   LAWS.  485 

PERCENTAGE 
YEAR.  POPULATION.  OK 

INCREASE. 

l8o°  5.308,937  33 

1810  7,239,814  36 

1820  9,638,191  33 

1830  12,860,702  33 

1840  17,017,723  32 

1850  23,151,876  36 

i860  31,335,120  35 

1870  38,784,597  23 

1 880  50,152,866  29 

The  average  rate  of  increase  is  32  per  cent.  The  lowest 
is  23,  for  the  decade  embracing  our  civil  war,  when  circum- 
stances were  not  as  inviting  to  foreigners  as  at  other  times. 
Estimating  the  increase  from  1880  to  1890  at  the  average  rate 
for  the  century,  32  per  cent.,  and  we  will  number  66,201,783. 
Estimating  it  at  the  rate  for  the  last  decade,  29  per  cent.,  and 
it  gives  us  64,697,197.  If  we  fall  to  the  lowest  rate  ever  at- 
tained, viz:  23  per  cent.,  from  i860  to  1870,  then  we  will  have 
61,688,025  people.  It  is  evident  that  as  the  nation  grows  older 
the  rate  of  increase  in  population  will  slowly  decline. 

INTEREST  LAWS  AND  STATUTES  OF  LIMITATIONS. 

The  interest  laws  of  the  different  States  of  the  Union  are 
quite  various  as  to  the  legal  rate  and  rate  allowed  if  stipulated 
in  contract.  As  a  rule  if  a  higher  rate  is  contracted  for  than 
the  law  permits,  only  the  legal  rate  can  be  collected  in  law. 

The  "  Statute  of  Limitations "  means  the  time  fixed  by 
statute  within  which  suit  must  be  brought  to  recover,  or  exe- 
cution issued  if  on  a  judgment.  The  following  table  exhibits 
the  interest  laws  and  limitation  on  judgments,  notes  and  open 
accounts: 


486 


MISCELLANEOUS. 


Interest  Uws. 


STATES  AND  TERRITORIES. 


Alabama     

Arkansas 

Arizona 

California 

Colorado 

Connecticut 

Dakota 

Delaware 

District  of  Columbia 

Florida 

Georgia. 

Idaho 

Illinois      

Indiana.  

Iowa 

Kansas 

Kentucky 

Louisiana 

Maine 

Maryland 

Massachusetts.   

Michigan. 

Minnesota 

Mississippi 

Missouri 

Montana    

Nebraska 

Nevada  

New  Hampshire 

New  Jersey 

New  Mexico 

New  York 

North  Carolina 

Ohio 

Oregon 

Pennsylvania 

Rhode  Island 

South  Carolina  

Tennessee  

Texas 

Utah 

Vermont 

Virginia 

Washington 

West  Virginia , 

Wisconsin. 
Wyoming  .... ... 


Legal 
Rate. 


Rate 

Allowed 

by 
Contract. 
Per  Cent. 


10 

Any  Rate 
Any  Rate 
Any  Rate 

6* 

Any  Rate 
6 
10 

Any  Rate 
8 
18 
8 
8 
10 
12 


Any  Rate 

6 

Any  Rate 
ID 
10 
10 
10 
Any  Rate 

10 

Any  Rate 

6 

6 

12 

6t 


10 
6 

Any  Rate 

10 

6 

12 

Any  Rate 

6 

8 

Any  Rate 
6* 
10 
Any  Rate 


Statute 

of 

Limitations. 


Judg- 
ments. 
Years. 


7 
10 
10 

5 
15 
10 
M 
IS 
M 

8 
10 

7 
20 

6 

6 

6 
20 
20 
16 
20 
10 

5 
10 

5 
20 
10 

10 
18 
5 
6 

to 

6 

10 

20 

5 


Notes. 
Years. 


Open 

Accounts. 

Years. 


*  Usury  not  recognized,  but  over  6  per  cent,  can  not  be 
col1ected  by  law  whether  stipulated  or  not.  f  Any  rate  is  al- 
lowed in  New  York  on  call  loans  of  $5,000  or  more  on  col- 
lateral security. 


PREGNANCY.  487 

SIGNS   OP    PREGNANCY. 

This  subject  assumes  great  importance  in  medical  juris- 
prudence on  account  of  the  fact  that  females  from  certain  mo- 
tives sometimes  conceal  and  sometimes  pretend  pregnancy. 
Concealment  may  be  attempted  to  avoid  disgrace,  and  to 
accomplish  secretly  the  destruction  of  the  offspring.  Preg- 
nancy may  be  pretended  or  simulated  to  gratify  the  wishes  of 
a  husband,  to  defraud  the  legal  successor,  to  extort  money 
from  some  one  declared  to  be  the  father,  or  to  delay  execution 
of  the  death  sentence.  There  are  two  sets  of  indications 
which  may  be  termed  constitutional  and  local. 

Constitutional  Signs. — 1.  Mental:  the  woman  approaching 
maternity  is  despondent,  depressed,  morose,  peevish,  irritable, 
capricious;  she  has  strange  tastes  and  desires  and  strong  and 
peculiar  antipathies.  2.  Facial  expression:  the  face  becomes 
emaciated  or  thin,  features  sharply  drawn,  nose  sharp,  eyes 
sunken  and  surrounded  by  brownish  or  purplish  circles,  mouth 
enlarged  and  the  whole  expression  languid.  The  French  call 
this  the  decomposition  of  the  features.  3.  Vitality:  there  is 
an  abnormal  increase  in  the  vital  action,  a  feverish  heat  pre- 
vails over  the  body,  stronger  in  those  of  sanguine  temper- 
ament, heartburn,  pains  in  the  teeth  and  face,  costiveness,  ex- 
cessive flow  of  saliva  and  emaciation  of  parts  of  the  body  ex- 
cept breasts  and  abdomen.  4.  Mammary  sympathies:  the 
breasts  become  enlarged  and  hardened  and  a  dark  colored  or 
purplish  circle  surrounds  the  nipple.  The  circle  grows  larger 
as  gestation  advances,  deepens  in  color,  becomes  raised  and 
turgid,  bearing  glandular  follicles  and  is  considered  of  the 
highest  degree  of  evidence  of  pregnancy.  5.  Stomach:  morn- 
ing sickness  or  irritability  of  the  stomach  early  in  the  day, 
usually  just  after  rising,  generally  accompanied  by  vomiting. 
6.  Menstrual  flow:  the  monthly  discharge  is  usually  sup- 
pressed.    This,  however,  might  occur  from  other  causes,  as 


488  MISCELLANEOUS. 

some  disease  of  the  uterus,  and  again,  some  women  continue 
the  monthly  flow  during  pregnancy,  although  these  are  ex- 
ceptional cases. 

Local  or  Sensible  Signs. — i.  Uterus:  the  uterus  or  womb  is 
rather  a  cone  shaped  organ,  the  base  or  fundus  being  up  and 
the  apex  or  os  being  down.  The  os  is  the  mouth  of  the  womb 
or  the  opening  of  the  neck  or  cervix  of  the  womb  and  the  part 
between  the  cervix  and  the  fundus  is  called  the  bod}*.  When 
the  new  principle  is  introduced  into  the  uterus  and  the  new 
life  begins  to  develop  there,  it  causes  a  determination  of  blood 
to  the  organ  which  develops  it  first  at  the  fundus,  next  in  the 
bod}'  and  lastly  in  the  cervix.  When  the  uterus  is  not  im- 
pregnated the  os  has  a  firm,  hard  feeling  and  well  defined  lips. 
After  impregnation  the  os  uteri  feels  soft,  tumid,  elastic,  the 
orifice  feeling  circular  instead  of  transverse.  As  pregnancy 
advances  the  cervix  is  gradually  taken  up  until  it  becomes 
finally  wholly  absorbed  in  the  body  of  the  womb.  2.  Umbili- 
cus: in  the  natural 'state  the  umbilicus  or  navel  is  depressed. 
As  pregnancy  advances  the  natural  depression  is  crowded  out 
until  the  place  becomes  smooth  with  the  surface  of  the  abdo- 
men and  the  umbilicus  is  scarcely  perceptible.  3.  Abdomen: 
the  abdomen  commences  perceptibly  to  enlarge  about  the  end 
of  the  third  month  and  increases  during  the  period  of  gesta- 
tion. This  is  not  an  infallible  sign,  as  the  same  phenomenon 
results  frequently  from  disease  of  the  liver,  spleen,  ovarian 
tumor  or  dropsy.  4.  Vagina:  the  vagina  from  the  vulva  or 
external  os  to  the  os  uteri  is  of  a  bluish  or  violet  tint  like  lees 
of  wine.  This  is  caused  by  the  increased  vascularity  of  the 
genital  organs  during  conception.  But  causes  other  than  con- 
ception may  produce  the  same  appearance.  5.  Quickening: 
the  mother  feels  the  quickening  about  the  middle  of  the  period 
of  gestation,  sometimes  a  little  sooner.  But  it  may  be  her  in- 
terest to  conceal  it.     There  are  different  ways  of  ascertaining 


PRKGNANCY.  489 

whether  the  woman  is  "quick"  with  child,  outside  of  her  own 
testimony.  In  advanced  stages  of  pregnancy  the  foetal  move- 
ment can  be  observed  when  the  mother  is  sitting,  not  at  all 
times,  but  occasionally,  causing  the  abdomen  to  jump  with  a 
sudden  motion.  Fcetal  movement  may  sometimes  be  excited 
by  a  sudden  application  of  the  hand,  cold  from  having  been 
immersed  in  cold  water,  on  the  bare  front  of  the  abdomen. 
Or  the  hand  may  be  laid  against  the  side  of  the  uterine  en- 
largement and  at  the  same  time  press  quickly  against  the  op- 
posite side  with  the  fingers  of  the  other  hand.  If  there  is  any 
foetal  movement  excited  it  can  be  felt  with  the  hand — it  will 
be  a  sudden  jump  and  probably  only  one  movement.  The 
most  reliable  method,  however,  is  the  application  of  the  steth- 
oscope, termed  the  process  of  auscultation.  This  is  a  tube- 
shaped  instrument,  invented  for  the  purpose  of  examining  the 
lungs  and  heart.  It  is  of  Greek  origin,  from  stethos,  the 
breast,  and  skopein,  to  examine.  When  applied  to  the  chest, 
the  operator  with  his  ear  to  the  other  end  can  distinctly  hear 
the  sounds  of  the  heart  and  lungs  and  can  judge  whether  there 
is  any  unnatural  sound.  Placed  against  the  abdomen  of  a 
woman  quick  with  child,  there  are  two  distinct  sounds  that 
can  be  heard.  First,  the  souffle  or  placental  murmur.  The 
placenta  is  the  organ  that  forms  around  the  foetus,  connecting 
it  with  the  entire  inner  surface  of  the  uterus  and  thus  with  the 
mother.  It  is  composed  principally  of  vascular  tufts  on  the 
blood  vessels  of  the  umbilical  cord.  It  is  the  medium  of  com- 
munication of  the  life  blood  from  the  mother  to  the  foetus.  It 
might  be  considered  an  enlargement  of  the  umbilical  cord, 
completely  enveloping  the  foetus  and  conveying  the  blood 
which  it  sucks  from  the  mother  by  its  leech-like  attachment  to 
the  inner  walls  of  the  womb,  to  the  foetus  through  the  umbil- 
ical cord  entering  at  the  center  of  the  abdomen.  The  placenta 
always  comes  away  after  the  birth  of  the  child  and  is  com- 
monly called  the  "afterbirth." 


490  MISCELLANEOUS. 

The  placental  sound  referred  to  is  a  low  murmuring  or 
cooing  sound,  accompanied  by  a  slight  rushing,  but  no  im- 
pulse or  throb.  This  sound  occurs  at  the  same  time  with  the 
mother's  pulse  and  may  intermit.  The  second  sound  that  can 
be  distinguished  is  the  pulsation  of  the  foetal  heart.  This  is 
double  and  consequently  very  rapid,  running  from  one  hun- 
dred to  one  hundred  and  sixty  a  minute.  These  heart  pulsa- 
tions can  not  be  heard  until  the  fifth  month  is  passed  and 
grow  more  and  more  distinct  as  pregnancy  advances.  Suc- 
cessful auscultation  not  only  establishes  pregnancy  but  reveals 
the  life  of  the  foetus. 

Legal  Aspects. — There  are  two  cases  which  may  arise  mak- 
ing it  important  to  ascertain  whether  a  woman  is  really  preg- 
nant. One  is  when  it  is  thought  she  is  pretending  pregnancy; 
the  other  when  she  is  charged  with  concealing  it.  The  motives 
that  may  induce  a  woman  to  pretend  to  be  pregnant  when  she 
is  not  are  two:  First,  when  a  widow  feigns  herself  to  be  with 
child  in  order  to  produce  a  supposititious  or  spurious  heir  to  the 
estate.  In  this  case  the  presumptive  heir  may  have  a  writ  de 
ventre  inspiciendo,  which  means  that  the  sheriff  shall  have  an 
examination  made  and  the  fact  determined  whether  pregnancy 
exists  or  not.  This  inspection  is  made  in  England  by  twelve 
matrons,  in  the  presence  of  twelve  knights.  If  the  result 
shows  pregnancy  she  is  kept  under  proper  guard  until  de- 
livered. If  the  decision  is  that  she  is  not  pregnant  the  pre- 
sumptive heir  is  admitted  to  the  inheritance.  The  second 
motive  is  when  a  woman  has  been  sentenced  to  death  for  the 
commission  of  a  crime.  A  woman  quick  with  child  would 
not  be  executed  while  in  that  condition.  When  this  claim  is 
made  a  jury  of  twelve  matrons  examine  her  to  ascertain  the 
truth,  and  if  their  verdict  be  quick  with  child  execution  will  be 
stayed  till  next  term  of  court,  or  from  term  to  term  until  she 
is  either  delivered  or  proves,  by  the  course  of  nature,  not  to 


PREGNANCY.  49 1 

be  with  child  at  all.  A  verdict  simply  with  child  will  not  be 
sufficient — it  must  be  alive  in  the  womb.  But  in  Scotland  all 
that  is  necessary  to  be  proved  is  the  fact  of  pregnancy,  no 
matter  whethei  the  woman  is  quick  with  child  or  not.  And 
the  same  would  be  sufficient  in  most  States  of  this  country. 
New  York,  however,  has  a  statute  for  such  a  case  authorizing 
the  sheriff  to  summon  a  jury  of  six  physicians,  and  if  they 
find  the  woman  convict  quick  with  child  execution  is  sus- 
pended and  the  finding  sent  to  the  Governor  of  the  State. 
When  he  finds  that  she  is  no  longer  quick  with  child  he  issues 
his  warrant  for  her  execution. 

There  is  seldom  any  motive  for  the  concealment  of  preg- 
nancy that  is  not  criminal,  generally  the  destroying  of  the  life 
of  the  foetus  in  utero,  or  of  the  child  immediately  upon  birth. 
It  is  easy  to  destroy  foetal  or  infant  life  and  hard  to  furnish 
proof  of  the  criminal  act.  Extremely  severe  laws  have  been 
passed  in  England,  and  in  some  of  the  States  of  the  Union,  to 
facilitate  the  proof  and  to  punish  the  act  of  concealment  of 
pregnancy  itself.  An  early  act  in  England  (21  Jac.  1.  C.  -7) 
required  that  any  mother  of  a  dead  born  child,  which  if  born 
alive  would  have  been  illegitimate,  who  had  tried  to  conceal 
its  birth,  should  prove  by  at  least  one  witness  that  it  was  born 
dead,  otherwise  the  presumption  should  be  conclusive  that  she 
had  murdered  it.  This  cruel  law  was  very  much  modified  in 
1803  and  since  then  mothers  indicted  for  the  murder  of  bastard 
children  are  tried  by  the  ordinary  rules  of  evidence.  Penn- 
sylvania had  a  law  passed  in  1781  making  the  concealment  of 
the  death  of  a  bastard  child  conclusive  evidence  to  convict  the 
mother  of  its  murder.  This  was  repealed  in  1790  and  further 
modified  in  1794.  The  punishment  usually  prescribed  in  the 
States  for  this  crime  is  fine  and  imprisonment.  New  York, 
Massachusetts,  Vermont,  Connecticut,  New  Jersey,  New- 
Hampshire,  Georgia,  Illinois  and  Michigan  have  statutes  on 
this  subject. 


492  MISCELLANEOUS. 

PERIODS   OF   GESTATION. 

Woman,  10  lunar  months,  280  days,  or  9  months  and  10 
days;  horse  and  ass,  11  months;  camel,  12  months;  elephant, 
2  years;  lion,  5  months;  buffalo,  12  months;  cow,  9  months; 
sheep,  5  months;  reindeer,  8  months;  monkey,  7  months; 
bear,  6  months;  hog,  4  months;  dog,  9  weeks;  cat,  8  weeks; 
rabbit,  4  weeks;  guinea  pig,  3  weeks;  wolf,  3  months;  goose 
eggs  hatch  in  30  days;  swan,  42  daj^s;  hen,  21  days;  duck,  30 
days;  pea  hen  and  turkey,  28  days;  canaries,  14  days;  pigeons, 
14  days;  parrots,  40  days. 

Above  periods  are  average  and  are  subject  to  considerable 
variation  in  individual  cases. 

HOUSEHOLD   REMEDIES. 

Scarlet  Fever. — Dr.  Henry  Pigeon,  eminent  physician  of 
London,  Eng.,  gives  the  following  account  of  his  method  of 
treatment  of  Scarlet  Fever:  "The  marvelous  success  which 
has  attended  my  treatment  of  scarlet  fever  by  sulphur  induces 
me  to  let  my  medical  brethren  know  of  my  plan,  so  that  they 
may  be  able  to  apply  the  same  remedy  without  delay.  All 
cases  in  which  I  used  it  were  well  marked  and  the  epidermis 
on  the  arms  in  each  case  came  away  like  the  skin  of  a  snake. 
The  following  was  the  exact  treatment  followed  in  each  case: 
Thoroughly  anoint  the  patient  twice  daily  with  sulphur  oint- 
ment; give  five  to  ten  grains  of  sulphur  in  a  little  jam  three 
times  a  day.  Sufficient  sulphur  was  burned,  twice  daily  (on 
coals  on  a  shovel),  to  fill  the  room  with  the  fumes,  and  of 
course  was  thoroughly  inhaled  b)T  the  patient.  Under  this 
mode  of  treatment  each  case  improved  immediately,  and  none 
was  over  eight  days  in  making  a  complete  recovery,  and  I 
firmly  believe  in  each  it  was  prevented  from  spreading  by  the 
treatment  adopted.  One  case  was  in  a  large  school.  Having 
had  a  large  experience  in  scarlet  fever,  I  feel  some  confidence 


HOUSEHOLD   REMEDIES.  493 

in  my  own  judgment,  and  I  am  of  the  opinion  that  the  very 
mildest  cases  I  ever  saw  do  not  do  half  so  well  as  bad  cases 
do  by  the  sulphur  treatment,  and,  so  far  as  I  can  judge,  sul- 
phur is  as  near  a  specific  for  scarlet  fever  as  possible." 

Diphtheria. — Mr.  John  S.  Wiles,  a  surgeon  of  Thorncombe, 
Dorset,  England,  had  his  attention  called  to  sulphur  as  a  spe- 
cific for  that  dread  disease,  diphtheria,  after  having  lost  two 
cases  of  a  malignant  type  out  of  nine  or  ten  he  had  been  called 
upon  to  attend.  He  tried  it  using  milk  of  sulphur  for  infants 
and  flowers  of  sulphur  for  older  children  and  adults,  brought 
to  a  creamy  consistence  with  glycerine;  dose — a  teaspoonful 
or  more,  according  to  age,  three  or  four  times  a  day,  swallowed 
slowly  and  application  of  the  same  to  the  nostrils  with  a 
sponge.  He  did  not  lose  a  case  by  this  treatment  and  suc- 
ceeded in  saving  life  when  the  throat  was  almost  blocked. 

Cholera. — Cholera  is  so  swift  and  fatal  in  its  action  that  its 
deadly  work  is  generally  done  before  medical  aid  can  be  pro- 
cured. It  is  of  the  utmost  importance  to  those  who  stand  in 
any  danger  of  this  dread  disease  to  be  prepared  to  give  imme- 
diate and  radical  treatment.  We  give  a  simple  remedy  that  is 
procurable  by  every  one  and  that  any  intelligent  person  can 
use.  It  was  used  with  great  success  in  Dublin  in  1836  and 
saved  thousands  of  lives.  It  was  used  with  equal  success 
again  in  1848.  If  used  at  the  right  time  and  in  the  proper 
way  it  will  save  life  99  cases  out  of  100. 

Formula:  Dissolve  1  ounce  of  camphor  in  6  ounces  of  spir- 
its of  wine.  If  there  is  an  epidemic  of  cholera  the  best  way 
would  be  to  put  this  medicine  in  the  hands  of  a  few  intelligent 
persons  who  would  undertake  to  administer  it  to  their  neighbors 
when  the>  are  seized  with  the  cholera  or  any  of  its  symptoms. 
But  the  following  instructions  must  be  followed  without  devi- 
ating in  the  least  degree. 

Treatment. — Symptoms:  Vomiting,  purging,  sudden  weak- 
ness, coldness,  cramps  or  spasms. 


494  MISCELLANEOUS. 

No  Whiskey. — Do  not  under  any  circumstances  give  any 
brandy,  whiskey  or  other  kinds  of  spirits. 

Put  to  Bed. — Put  the  patient  to  bed  at  once,  covering 
warmly,  but  not  overloading  with  bed  clothes. 

Camphor,  2  Drops. — Without  any  delay  give  two  drops  (no 
more)  of  the  camphor  mixture  on  a  little  pounded  sugar  in  a 
spoonful  of  cold  or  iced  water.  Be  sure  and  use  cold  water  and 
nothing  else. 

In  five  minutes  repeat  the  dose  exactly  as  at  first  and  in 
five  minutes  more  give  a  third  dose  of  two  drops  in  the  same 
way.  Now  wait  ten  or  fifteen  minutes  to  see  whether  there  is 
a  sense  of  returning  warmth,  any  indication  of  perspira- 
tion, decrease  of  sickness,  cramps,  etc.  Then,  if  necessary, 
give  two  drops  as  before  and  repeat  every  five  minutes  until 
12  or  14  drops  have  been  taken.  The  patient  must  not  be  al- 
lowed to  take  anything  of  any  kind  whatever  except  the  cold 
or  iced  water  while  the  medicine  is  operating  or  it  will  com- 
pletely destroy  its  effects.  Any  other  medicine  or  hot  drinks 
of  any  kind  will  neutralize  the  camphor  and  its  effects  will  be 
lost.  The  object  of  the  camphor  is  to  check  vomiting  and 
produce  a  free,  warm  and  natural  perspiration.  The  use  of 
cold  or  iced  water  was  recommended  by  the  celebrated  and 
wonderfully  successful  Dr.  Paddock,  of  London,  who  always 
permitted  his  patients  to  drink  cold  or  iced  water,  believing 
that  it  has  a  tendency  to  promote  perspiration  and  the  dis- 
charge of  yellow  bile.  Now,  when  perspiration  begins  and 
there  are  signs  of  returning  warmth,  do  not  permit  the  patient 
to  arise  and  expose  himself  to  any  degree  of  cold.  Do  not  tor- 
ment him  with  baths  or  steaming  or  rubbing  of  any  kind. 

Let  Him  Lie  Still. — At  this  juncture  he  should  be  per- 
mitted to  lie  perfectly  still  and  he  will  soon  fall  asleep  after 
perspiration  begins.  Let  him  sleep  until  he  wakes  when  he 
will  be  well  but  very  weak  and  languid  and  perhaps  a  little 


CHOLERA.  495 

feverish.  If  feverish,  give  a  small  dose,  say  a  teaspoonful,  of 
Gregory's  powder.  Or  rhubarb  and  magnesia  with  a  little 
peppermint  water  to  wash  it  down  will  be  good.  But  the  pa- 
tient must  be  kept  quiet,  taking  only  a  little  soup,  broth  or 
gruel,  for  a  day  or  two. 

This  is  a  certain  and  positive  cure  for  cholera,  whenever 
taken  in  time  and  the  cure  is  generally  affected  before  it  is 
possible  to  get  a  physician,  that  is  in  less  than  an  hour. 

Drunkenness. — John  Vine  Hall,  commander  of  the  cele- 
brated Great  Eastern  steamship,  became  so  addicted  to  the  use 
of  intoxicating  drink  that  he  was  entirely  unfitted  for  business 
and  his  strongest  efforts  to  reclaim  himself  proved  unavailing 
as  the  insidious  stimulant  had  destroyed  his  will-power.  Rec- 
ognizing his  helpless  condition  and  still  having  the  desire  to 
exert  his  former  manly  independence,  he  sought  the  aid  of  an 
eminent  physician,  who  gave  him  a  prescription  which  he  used 
faithfully  for  seven  months.  At  the  end  of  this  time  he  was 
strong  and  vigorous  as  ever,  the  debasing,  appetite  which  had 
for  so  many  years  led  him  humble  captive  was  entirely  gone — 
in  other  words,  he  was  himself  again  and  had  no  desire  for 
strong  drink.  He  afterwards  published  the  prescription  for 
the  benefit  of  his  suffering  fellow  mortals  who  desire  to  rid 
themselves  of  the  debasing  chains  of  slavery  to  strong  drink, 
and  by  it  thousands  have  since  been  restored. 

The  formula  is  as  follows: 

Sulphate  of  iron,  five  grains;  magnesia,  ten  grains;  pepper- 
mint water,  eleven  drachms;  spirit  of  nutmeg,  one  drachm. 
Dose,  one  tablespoonful  twice  a  day.  This  is  a  tonic  and  sat- 
isfies the  desire  for  a  stimulant  and  prevents  that  prostration 
and  physical  demoralization  that  would  otherwise  follow  a 
sudden  breaking  off  of  the  use  of  alcoholic  stimulants.  ■  It  also 
finally  entirely  destroys  the  desire  for  intoxicants  and  conse- 
quently restores  a  man's  independence  and  manhood. 


496  MISCELLANEOUS. 

Small-Pox. — It  is  said  that  the  worst  case  of  small-pox  can 
be  cured  in  three  days  simply  by  the  use  of  cream  of  tartar. 
One  ounce  of  cream  of  tartar  dissolved  in  a  pint  of  water, 
drank  at  intervals,  when  cold,  has  cured  thousands,  never 
leaving  a  mark,  never  causing  blindness  and  avoiding  all 
tedious  lingering.     It  is  simple  and  safe,  and  worthy  a  trial. 

Lockjaw. — Lockjaw  generally  results  from  a  wound  in 
some  part  of  the  body,  frequently  in  the  foot  or  some  of  the 
extremities.  When  lockjaw  sets,  take  a  little  turpentine,  warm 
it,  and  pour  it  into  the  wound,  and  relief  will  follow  in  a 
minute.  Nothing  better  can  be  applied  to  a  severe  cut  or 
bruise  than  cold  turpentine,  it  will  relieve  almost  instantly. 

Croup. — Turpentine  is  a  sovereign  remedy  for  croup. 
Saturate  a  piece  of  flannel  with  turpentine  and  place  it  on  the 
throat  and  chest;  three  or  four  drops  may  be  taken  inwardly 
on  a  lump  of  sugar.     Relief  will  always  follow. 

To  Remove  a  Mote  from  the  Eye. — Place  the  fingers  upon 
the  lid  of  the  other  eye  and  hold  them  there  lightly,  moving 
about  gently.  Do  not  under  any  circumstances  touch  the  eye 
in  which  the  mote  is  lodged.  Soon  the  eye  affected  will  open, 
the  water  will  flow  and  the  mote  will  come  out  and  the  pain 
cease.  There  is  no  philosophy  in  this  method,  but  it  is  won- 
derfully effective  and  is  worth  trying.  Sometimes  the  foreign 
substance  may  be  metallic,  or  may  have  struck  the  eye  with 
such  force  as  to  be  slightly  imbedded  in  the  ball.  In  these 
cases  other  means  would  have  to  be  used.  A  magnet  is  some- 
times very  useful  in  drawing  out  a  metallic  mote.  Hold  it 
close  to  the  open  eye.  Some  recommend  drawing  the  upper 
lid  down  over  the  lower  one,  thus  increasing  the  flow  of  tears 
and  brushing  the  inner  surface  of  the  lid  with  the  lashes,  often 
removing  the  mote.  If  the  mote  can  be  seen,  it  may  gener- 
ally be  removed  by  another  person  placing  a  silk  handker- 
chief over  the  point  of  a  pencil  and  gently  touching  it.     Most 


MEASURES.  497 

of  the  pain  comes  from  scratching  the  ball  and  irritating  it  by 
rubbing  the  eye  with  the  fingers  as  soon  as  the  mote  lodges  in 
the  eye.     Do  not  do  this. 

Hemorrhage. — Bleeding  from  the  stomach  or  lungs  is  gen- 
erally stopped  by  small  doses  of  common  table  salt.  Bleeding 
from  the  nose  is  relieved  by  bathing  the  face  and  neck  with 
cold  water. 

Insomnia. — When  sleeplessness  is  caused  by  too  much 
blood  in  the  head,  apply  a  wet,  cold  cloth  to  the  back  of  the 
neck.  Eating  lightly  of  ordinary  food  will  sometimes  relieve 
the  brain  by  determining  the  blood  to  the  stomach. 

Common  Sore  Throat. — Chloride  of  potash  is  the  standard 
remedy  especially  when  the  throat  is  raw.  Dissolve  in  water 
and  gargle.  It  can  now  be  had  at  the  drug  stores  in  the  form 
of  buttons  which  dissolve  in  the  mouth. 

TO  MEASURE  CORN   IN  THE  CRIB. 

Take  the  inside  measure  of  the  crib  in  feet.  Multiply 
length,  breadth  and  thickness  together  and  divide  the  product 
by  two.  If  the  corn  is  sound  and  dry  ears  the  result  will  be 
the  number  of  bushels  of  shelled  corn  in  the  crib  because  two 
cubic  feet  of  good  ear  corn  will  shell  one  bushel. 

TO  MEASURE  HAY  IN  THE  MOW. 

Allow  512  cubic  feet  of  hay  for  a  ton,  if  the  hay  is  prop- 
erly cured  and  carefully  stored.  The  rule  then  is  plain :  Take 
the  product  of  the  length,  breadth  and  depth  of  the  mow  in 
feet  and  divide  by  512. 

TO  MEASURE  GRAIN,  APPLES,  POTATOES,  ETC.,  IN  A  BIN. 

Take  the  inside  dimensions  in  feet  and  multiply  them  to- 
gether, as  above.     Four-fiths  of  this  product  will  be  the  num- 
ber of  bushels  near  enough  for  practical  purposes.     Multiply 
by  4  and  divide  by  5. 
32 


49§  MISCELLANEOUS. 

DEED  TO  A  FARM — WHAT  IT  INCLUDES. 

When  a  person  sells  a  farm  and  makes  a  deed  he  conveys 
to  the  purchaser  title  in  the  land  and  everything  upon  it  whose 
use,  nature  or  attachment  make  it  a  part  of  the  realty.  Every- 
thing personal  is  retained  and  may  be  removed.  This  is  the 
real  test  in  all  the  cases,  a  few  of  which  are  appended.  The 
deed  includes  all  fences  standing,  also  all  fencing  material 
such  as  posts,  rails,  etc.,  which  had  been  once  used  in  a  fence 
but  taken  down  and  piled  up  for  future  use  in  the  same  place. 
New  fencing  material,  just  bought  and  never  used,  is  personal 
and  would  not  pass.  Hop  poles  once  used  and  piled  up  or 
stored  to  be  used  again  go  with  the  land,  but  loose  boards  laid 
across  the  beams  of  a  barn  and  never  fastened  to  it  do  not, 
and  the  seller  may  remove  them.  Standing  trees  and  trees 
cut  or  blown  down  and  left  lying  where  they  fell  go  with  the 
land,  but  if  cut  and  corded  up  for  sale  they  do  not — the  wood 
has  become  personal  property. 

Manure  in  the  barnyard  or  in  the  compost  heap  ready  for 
use  goes  with  the  land  in  the  absence  of  any  special  agreement 
to  the  contrary,  though  it  might  not  if  the  owner  had  previ- 
ously sold  it  to  some  other  party  and  had  collected  it  together 
in  a  heap  by  itself,  as  this  would  be  a  technical  severance  from 
the  soil,  converting  it  into  personal  property.  A  lessee  can 
not  remove  the  manure  made  on  the  farm  while  he  is  in  occu- 
pation. 

Growing  crops  pass  with  the  farm  unless  expressly  re- 
served. If  it  is  not  intended  to  convey  the  crops  it  should  be 
so  stated  in  the  deed,  an  oral  agreement  not  being  sufficient. 
It  is  sometimes  stipulated  that  possession  is  to  be  given  at 
some  future  day  by  which  time  the  crops,  manures,  etc.,  may 
be  removed. 

Buildings  go  with  the  land  without  naming  them  in  the 


THE   GULF   STREAM.  499 

deed,  also  lumber  and  timber  of  any  old  building  which  has 
been  torn  down  or  blown  down  and  stored  away  for  future 
use. 

The  real  test  in  all  these  instances  and  in  all  others  that 
may  arise,  is  whether  the  thing  in  question  is  personal  or  real. 
If  real  it  goes  with  the  land;  if  personal  the  seller  may  re- 
move it.  An  intelligent  application  of  this  rule  will  bring  the 
correct  solution  to  all  cases  and  obviate  much  trouble  and 
sometimes  litigation.  The  same  rule  and  strictness  of  con- 
struction applies  between  an  executor  and  an  heir  at  law  as 
between  a  vendor  and  vendee. 

THE  GULF  STREAM. 

The  Gulf  Stream  is  one  of  the  wonders  of  the  physical 
world.  Every  school  boy  knows  of  its  existence,  the  neigh- 
borhood of  its  origin,  its  direction,  velocity,  temperature,  color, 
relation  to  navigation,  effects  upon  climate  and  vegetation  on 
coasts  it  touches  and  other  features,  but  as  to  the  actual  cause, 
the  initial  force  that  gives  it  momentum,  all  must  profess  ig- 
norance. The  learned  writers  have  only  offered  theories  upon 
this  important  question.  A  very  interesting  investigation  of 
this  matter  was  recently  made  by  Mr.  W.  S.  Howard,  who  was 
for  three  years  attached  to  the  United  States  coast  survey  steamer 
Blake  which  for  three  months  was  anchored  at  the  source  of 
the  Gulf  Stream,  in  the  Carribean  Sea,  and  spent  two  years  in 
tracing  up  and  fixing  the  source  of  this  wonderful  marine  river. 
His  remarks  upon  this  subject,  which  we  give  below,  while 
not  disclosing  positively  the  true  cause  of  the  stream,  set  at 
rest  some  old  theories  and  give  us  the  most  reliable 
information  that  has  ever  been  obtained  on  that  subject. 
Mr.  Howard  says:  "We  spent  two  years  in  tracing  up  the 
Gulf  stream  and  studying  its  peculiarities,  and,  while  we  are 
still  in  the  dark  as  to  the  primary  cause  of  this  great  ocean 
river,  we  have  definitely  fixed  upon  the  spot  where  it  orig- 


500  MISCELLANEOUS. 

inates.  Formerly  it  was  believed  that  the  Gulf  stream  was 
simply  the  continuation  of  the  Mississippi  river,  the  immense 
volume  of  water  flowing  out  of  which  cleaved  its  waj'  through 
old  ocean  and  preserving  its  own  distinctive  characteristics  as 
to  temperature  and  color,  finally  was  lost  and  assimilated  by 
the  waters  of  the  frozen  northern  seas.  Others  held  to  the 
opinion  that  the  Gulf  stream  was  formed  and  controlled  by  the 
trade  winds. 

"Our  observations  and  investigations  furnished  us  with 
conclusive  proof  that  neither  of  these  elements  has  anything 
to  do  with  it.  One  curious  fact  was  established,  however. 
We  found  that  the  moon  affected  the  Gulf  stream  and  that  the 
current  was  controlled  absolutely  and  arbitrarily  by  that  body. 

"The  true  source  or  beginning  of  the  Gulf  stream,  estab- 
lished by  careful  scientific  observation,  extending  over  a  period 
of  two  years,  is  at  a  point  between  Fowey  Rocks,  Fla.,  and  the 
Gun  Cay,  on  the  coast  of  the  Bahamas.  At  this  place,  in  498 
fathoms  of  water  (a  fathom  is  6  feet),  we  anchored  and  for 
months  devoted  ourselves  to  a  careful  study  of  the  great 
ocean  river. 

"Let  me  tell  you  something  about  the  peculiarities  that  we 
noticed.  To  begin  with,  the  current  of  the  Gulf  stream  at  the 
point  where  we  were  anchored  and  which  we  unanimously 
agreed  upon  as  its  true  source,  varies  daily  in  velocity.  The 
difference  in  the  flow  was  at  times  as  much  as  two  and  a  half 
knots  per  hour  (a  knot  is  6086.7  feet).  The  greatest  velocity 
noted  was  generally  about  nine  hours  before  the  upper  transit 
of  the  moon.  The  variations  were  most  excessive  on  the  east- 
ern side  of  the  straits  and  least  on  the  western  side.  The 
average  daily  currents  vary  during  the  month,  the  strongest 
current  coming  a  day  or  two  after  the  greatest  declination  of 
the  moon. 

"The  axis  or  true  point  of  beginning  of  the  Gulf  stream 


THE   GULF   STREAM.  501 

(determined  by  fixing  the  position  of  the  strongest  surface 
flow)  is  eleven  and  a  half  miles  east  of  the  Fowey  Rocks  light- 
house. The  strongest  surface  current  found  here  was  five  and 
a  quarter  knots  per  hour,  the  least,  one  and  three-quarter 
knots  and  the  average,  three  and  six-tenths  knots.  We  used 
two  meters  in  our  observation,  one  for  the  surface  current  and 
one  for  the  sub-surface  stream.  The  wind  has  no  effect  upon 
the  velocity  of  the  stream  and  does  not  change  the  axis  of  the 
current.  The  surface  current,  it  was  noticed,  has  a  much 
higher  velocity  than  the  sub-surface.  During  our  observations 
we  occupied  twenty-six  different  stations,  being  anchored  at 
each  for  several  days  at  a  time.  We  took  1,557  current  ob- 
servations with  the  meter  and  1,807  current  observations  with 
the  pole  during  this  time. 

"We  were  all  satisfied  that  neither  the  Mississippi  river 
nor  the  trade  winds  were  in  any  way  responsible  for  the  Gulf 
stream ;  that  it  was  affected  by  the  changes  of  the  moon ;  and 
that  this  particular  point,  1 1  ^4  miles  east  of  Fowey  Rocks 
lighthouse,  was  its  true  axis  or  source. 

"The  probable  first  cause  still  affords  a  great  field  for  spec- 
ulation. Just  imagine,  if  you  can,  what  would  have  been  the 
result  if  we  could  have  donned  submarine  armor  and  dived  to 
the  bottom  in  498  fathoms  of* water.  We  made  soundings,  but 
they  revealed  to  us  nothing.  The  bottom  was  a  sandy  coral 
foundation ;  fish  and  other  submarine  creatures  lived  and  dis- 
ported themselves  in  the  depths  and  all  the  time  that  surging, 
resistless  current  boiled  about  us,  defying  inquiry  as  to  its 
true  origin. 

"It  might  be,  for  aught  any  one  could  say  to  the  contrary, 
the  mouth  of  a  great  river,  with  its  source  deep  down  in  the 
bowels  of  the  earth,  among  those  everlasting  fires  that  scien- 
tists tell  us  are  continually  burning  there.  The  superheated 
water  gushing  to  the  surface  of  the  ocean  at  that  depth  with  a 


502  MISCELLANEOUS. 

power  that  can  not  be  estimated  would  be  apt  to  displace  the 
chilled  and  heavier  water  of  the  ocean,  and  with  an  initial  ve- 
locity of  nearly  six  miles  an  hour,  would  certainly  clear  for 
itself  a  pathway  through  the  ocean  until  chilled  and  rendered 
inert  by  the  frozen  waters  of  the  Arctic  seas. 

"Again,  it  may  be  that  we  were  anchored  over  an  immense 
and  ever  active  volcano,  which,  in  no  way  crippled  by  the  con- 
stant influx  of  the  cold  ocean  water  into  its  yawning  crater, 
continually,  with  a  power  that  human  thought  can  not  meas- 
ure, hurls  back  the  heated  waves,  and  this  repulsion,  going  on 
day  after  day  and  year  after  year  for  a  period  of  time  that  has 
not  yet  been  fixed  by  observation  or  deduction,  has  increased 
the  volume  of  the  at  first  puny  geyser  until  now  it  has  become 
a  fixed  and  well  founded  current,  differing  in  color  and  tem- 
perature from  the  water  that  surrounds  it,  and  with  a  sweep 
and  stretch  that  extends  over  thousands  of  miles.  You  can 
theorize  all  day  over  the  matter  and  perhaps  be  as  far  from 
the  truth  as  ever.  The  observations  made  by  the  Blake  settled 
several  disputed  points: 

"First — That  the  winds  and  the  Mississippi  river  have 
nothing  to  do  with  the  formation  of  the  Gulf  stream. 

Secondly — That  a  point  eleven  and  a  half  miles  east  of 
Fowey  Rocks  lighthouse,  Florida,  in  the  Carribean  sea,  is  its 
true  axis  or  source. 

Thirdly — That  the  velocity  of  the  current  is  controlled  by 
the  declination  of  the  moon." 

ORIGIN   OF   THE   NAMES   OF  THE   MONTHS. 

January. — The  Roman  or  Latin  deity,  Janus,  was  the  god 
of  the  sun  and  the  year.  The  month  of  January  was  named 
for  him.  He  was  always  represented  in  Roman  statuary  with 
two  faces,  looking  in  opposite  directions.  The  Temple  of 
Janus,  at  Rome,  was  never  closed  except  in  time  of  universal 
peace. 


ORIGIN  OF  THE  NAMES  OF  THE  MONTH.  503 

February. — This  month  was  introduced  into  the  Roman 
calendar  by  Numa.  The  name  undoubtedly  comes  from  the 
great  feast  of  expiation  or  purification  held  every  year  on  the 
fifteenth  of  this  month  and  called  Februa,  from  februum,  in 
the  Sabine  language  a  purgative,  hence  the  plural  februa, 
the  festival  of  purification  and  from  this  Februarius,  the  Latin 
name  of  the  month  which  we  call  February. 

March. — From  Mars,  the  Roman  god  of  war. 

April. — Latin  Aprilis,  contracted  from  Aperilis,  which 
comes  from  aperire,  to  open.  The  month  in  which  the  earth 
opens  for  a  new  fruitage;  buds  burst  and  flowers  come  forth 
in  April. 

May. — The  goddess  Mam  was  the  daughter  of  Atlas.  She 
was  the  mother  of  Mercury  by  Jupiter.  The  Greek  Maia 
means  properly  mother.  The  fifth  month  of  the  year  is 
named  after  this  goddess. 

June. — Latin  Junius,  from  Juno,  because  the  month  was 
sacred  to  this  goddess.  Juno  was  the  sister  and  wife  of  Jupi- 
ter. She  was  the  goddess  who  presided  over  marriages  and 
was  supposed  to  protect  married  women. 

July. — Latin  Julius.  Julius  Caesar  was  born  in  this  month 
which  was  then  called  Quintilis,  the  fifth  month,  March  being 
the  first  according  to  the  old  Roman  calendar.  The  name  of 
the  month  was  changed  to  Julius,  Caesar's  surname,  at  the 
suggestian  of  Antony.     From  Julius  we  get  July. 

August. — Latin  Augustus.  The  Emperor  O.  Augustus 
Caesar  won  a  number  of  victories  and  also  entered  into  his 
first  consulate  in  the  month  Sextilis,  meaning  sixth,  counting 
from  March.  He  changed  the  name  himself  to  Augustus,  his 
own  surname,  and  we  call  it  August. 

September. — From  Latin  septem,  meaning  seven.  The 
seventh  month  in  the  old  Roman  calendar,  counting  from 
March. 


504  MISCELLANEOUS. 

October. — From  L,atin  octo,  eight 

November. — From  Latin  novem,  nine. 

December. — From  L,atin  decern,  ten.  The  last  four  months 
retain  their  names  in  the  old  Roman  calendar  according  to 
their  number,  counting  from  March,  which  makes  them  seem 
the  seventh,  eighth,  ninth  and  tenth  months,  whereas  in  our 
calendar,  beginning  at  January,  two  months  earlier,  they  are 
the  ninth,  tenth,  eleventh  and  twelfth. 

RELIGION    IN    CARDS. 

A  private  soldier  by  the  name  of  Richard  Roe  was  taken 
before  the  mayor  for  playing  cards  during  divine  service.  It 
appears  that  a  sergeant  commanded  the  soldiers  at  the  church, 
and  when  the  parson  had  read  the  prayers,  he  took  the  text. 
Those  who  had  a  Bible  took  it  out,  but  this  soldier  had  neither 
Bible  nor  common  prayer  book,  but  pulling  out  a  pack  of  cards 
he  spread  them  before  him.  He  just  looked  at  one  card  and 
then  at  another.  The  sergeant  of  the  company  saw  him,  and 
said,  "Dick,  put  up  the  cards;  this  is  no  place  for  them." 

"Never  mind  that,"  said  Richard. 

When  the  service  was  over,  the  constable  took  Richard 
before  the  mayor. 

"Well,"  says  the  mayor,  "what  have  you  brought  the 
soldier  here  for?" 

"For  playing  cards  in  church." 

"Well,  soldier,  what  have  you  to  say  for  yourself?" 

"Much,  sir,  I  hope." 

"Very  good.  If  not,  I  will  punish  you  more  than  man 
was  ever  punished." 

"I  have  been,"  said  the  soldier,  "about  six  weeks  on  the 
march.  I  have  neither  Bible  nor  common  prayer  book.  I 
have  nothing  but  a  pack  of  cards,  and  I'll  satisfy  your  worship 
of  the  purity  of  my  intentions."  And,  spreading  the  cards 
before  the  mayor,  he  began  with  the  ace:   "When  I  see  the 


RELIGION    IN    CARDS.  505 

ace,  it  reminds  me  there  is  but  one  God.  When  I  see  the 
deuce,  it  reminds  me  of  Father  and  Son.  When  I  see  the  trey, 
it  reminds  me  of  the  Father,  Son  and  Holy  Ghost.  When  I 
see  the  four  spot,  it  reminds  me  of  the  four  Evangelists  that 
preached,  Matthew,  Mark,  Luke  and  John.  When  I  meet  the 
five,  it  reminds  me  of  the  five  wise  virgins  that  trimmed  their 
lamps — there  were  ten,  but  five  were  wise  and  five  were  foolish 
and  were  shut  out.  When  I  see  the  six,  it  reminds  me  that  in 
six  days  the  Lord  made  heaven  and  earth.  When  I  see  the 
seven,  it  reminds  me  that  on  the  seventh  day  he  rested  from  the 
great  work  he  had  created,  and  hallowed  it.  When  I  see  the 
eight,  it  reminds  me  of  the  eight  righteous  persons  that  were 
saved  when  God  destroyed  the  world,  viz :  Noah  and  his  wife, 
with  three  sons  and  their  wives.  When  I  see  the  nine,  it  re- 
minds me  of  the  nine  lepers  that  were  cleansed  by  our  Saviour, 
there  were  nine  out  of  ten  who  never  returned  thanks.  When 
I  see  the  ten,  it  reminds  me  of  the  ten  commandments  which 
God  handed  down  to  Moses  on  tables  of  stone.  When  I  see  the 
King,  it  reminds  me  of  the  King  of  heaven,  which  is  God 
Almighty.  When  I  see  the  Queen,  it  reminds  me  of  the  Queen 
of  Sheba,  who  visited  Solomon,  for  she  was  as  wise  a  woman 
as  he  was  a  man.  She  brought  with  her  fifty  boys  and  fifty 
girls,  all  dressed  in  boys'  apparel,  for  King  Solomon  to  tell 
which  were  boys  and  which  were  girls.  King  Solomon  sent 
for  water  for  them  to  wash ;  the  girls  washed  to  the  elbows 
and  the  boys  to  the  wrists,  so  King  Solomon  told  by  that." 

"Well,"  said  the  mayor,  "you  have  given  a  good  desciption 
of  all  the  cards  but  one." 

"What  is  that?" 

"The  knave,"  said  the  mayor. 

"  I  will  give  your  honor  a  description  of  that,  too,  if  you 
will  not  be  angry?" 

"I  will  not,"  said  the  mayor,  "if  you  do  not  term  me  to  be 
the  knave." 


506  miscellaneous. 

"Well,"  said  the  soldier,  "the  greatest  knave  that  I  know  of 
is  the  constable  that  brought  me  here." 

"I  do  not  know,"  said  the  mayor,  "if  he  is  the  greatest 
knave  but  I  know  he  is  the  greatest  fool." 

"When  I  count  the  spots  in  a  pack  of  cards,  calling  the 
picture  cards  eleven,  twelve  and  thirteen,  I  find  there  are,  with 
the  joker,  three  hundred  and  sixty-five,  the  number  of  days  in 
a  year.  If  I  count  the  cards  in  a  pack  I  find  fifty-two,  the 
number  of  weeks  in  a  year.  There  are  four  suits,  the  number 
of  weeks  in  a  month  and  thirteen  tricks,  the  weeks  in  a  quar- 
ter. So  you  see,  Mr.  Mayor,  a  pack  of  cards  serves  for  a 
Bible,  a  prayer  book  and  an  almanac." 

"You  are  dismissed,"  said  the  mayor. 


INDeX. 


PAGE. 

Abettors 9 

Abortion,  attempt  to  procure 13 

Adultery 36 

Agents '. . 391 

extent  of  authority,  394 ;  liability  of,  395  ;  revocation  of  au- 
thority, 397  ;  misconduct  of,  397. 

Aiders 9 

Aiding  an  escape 30 

Apostolic  Bull 461 

Army,  the ... 476 

Arrests,  who  may  make 53 

when  any  one  may 63 

Arson 20 

Assault  and  battery 16 

Assault  with  intent  to  kill 16 

Assignments. 407 

form  of,  408 ;  deed  for  creditors,  form  of,  409. 

Betting  on  an  election 32 

Bigamy 35 

Bills  of  exchange 388 

Blackmailing 18 

Bonds 390 

form  of 391 

Bribery 29,  38 

Brooklyn  Bridge 450 

Burglary 21 

Business,  law  of. 283 

Carrying  concealed  weapons 26 

Child  stealing 17 

Cholera 493 

Congress  of  U.  S 469 

507 


508  INDEX. 

PAGE. 

Contracts ,65 

consideration,  367;  parties  to,  369;  what  must  be  in  writing, 
370  ;  implied,  374  ;  construction  of,  375  ;  lex  loci  of,  376 ;  de- 
livery under,  379  ;  warranty  under,  381. 

Counterfeiting 44>  ^4 

Nat.  Banknotes,  164;  U.  S.  notes,  181  ;  Canadian  notes,  200; 
postage  stamps,  46-  gold  or  silver  coin,  196;  silver  certifi- 
cates, 192. 

Counterfeit  coin,  to  detect 198 

Crime,   law  of 5 

Croup 496 

Cruelty  to  animals 32 

Customs,  regulations  of  U.  S 455 

Days  of  Grace 386 


Deeds. 


339 


form  of  warranty,  340;  short  form.  342;  trust,  form  of,  343; 

State  laws  on,  358  ;  to  a  farm,  what  it  includes,  498. 

Delivery 37a 

Detective  work 206 

Diphtheria 493 


Divorce 


439 


State  laws  upon 440 

Dower 338 

form  of  release  of .  .  . 342 

Drunkenness .    495 

Dueling 26 

Embezzlement. 22 

Emblements 336 

Extortion 30 

Extradition.  International 113 

treaty,  the  basis  of,  116;  citizens  and  foreigners,  116;  convicts, 
121;  extraditable  crimes,  117;  evidence,  118;  from  the  U.  S., 
156;  to  the  U.  S.,  157;  U.  S.  laws  upon,  155;  English  act  on, 
160;  treaties  existing:  Austria.  126;  Baden.  126;  Bavaria,  124; 
Belgium,  144;  Bremen,  124;  Dominican  Republic,  129;  Ecua- 
dor. 137;  France.  122;  Great  Britain,  121;  Hanover,  125;  Ha- 
waiian Islands,  123;  Hayti,  129;  Italy,  130;  Japan,  153; 
Luxemburg,  150;  Mechlenburg-Schwerein.  125;  Mechlen- 
burg-Sterlitz,  125;  Mexico,  127;  Netherlands,  142;  Nicarau- 


INDEX.  509 

PAGE. 

gua,  132;  North  German  Confederation,  155;  Norway  and 
Sweden,  126;  Oldenburg,  125;  Orange  Free  State,  136;  Otto- 
man Empire,  138;  Peru,  134;  Prussia  and  other  States,  123; 
Salvador  Republic,  131;  Schaumburg-Lippe,  125;  Sicilies, 
two,  125;  Spain,  140  and  14H  ;  Swiss  Confederation,  123  ;  Ven- 
ezuela, 127;   Wurtemburg,  124. 

Extradition,  Inter-State 68 

upon  indictment,  71 ;  upon  complaint,  75 ;  forms  for,  77  to  82 ; 
cases  and  decisions,  83  to  90;  extraditable  crimes,  90;  as  to 
misdemeanors,  92  to  96 ;  flight  from  justice,  96;  agents'  pow- 
ers, 100. 

False  pretenses 40 

Fee  simple 336 

Felony ! 7 

effect  of  conviction  of,  8;   pardon  from,  8;  compounding,  30. 

Finding,  law  of 459 

Foreign  money,  value  in  U.  S.  gold  coin   462 

Forgery 40 

Fornication  36 

Frauds 40 

Gambling 32 

Game  laws 33 

Gestation,  periods  of 492 

Gil- -ing coin   46 

Grave  robbing .- 

Guillotine,  the ,g« 

Gulf  Stream,  the 400 

Habeas  corpus 7^  10^ 

jurisdiction  in tn$ 

Hemorrhage ^oj 

Horse  stealing 24 

Household  remedies 492 

Imprisonment 9 

Incest ^ 

Insomnia     497 

Installment  sales,  form  of  lease  for 384 

Interest,  short  rules  for 465 

State  laws  on 485 

Kidnaping 17 


510  INDEX. 

PAGE. 

Larceny. 23 

Leases 343 

form  of,  348 ;  notice  to  quit,  350 ;  form  of  for  articles  sold  on 
installments,  384. 

Legal  holidays 461 

Legal  terms,  meaning  of 283 

Lex  loci 376 

Libel 17 

Liens 41 1 

State  laws  on  mechanics',  411 ;  form  of  mechanics',  417. 

Life  estate 336 

Lockjaw • 496 

Loudon 453 

Lottery .' 32 

Malice 11 

Malicious  destruction  of  property 24 

Manslaughter 12 

Marriage 419 

elements  constituting,  425;  consequences  of  invalid,  430; 
civil  effects  of  invalid,  431 ;  who  may  take  advantage  of  in- 
valid, 432 ;.  void  and  voidable,  425;  presumption  of,  434;  ob- 
ject of,  439;  consummation  of,  439;  State  laws  upon,  445. 

Mason  and  Dixon's  line 466 

Mathews',  Judge,  charge 54 

Measure,  to 

corn  in  the  crib,  497;  grain,  apples,  etc.,  in  the  bin,  497;  hay 

in  the  mow,  497- 

Miscegenation • ......  33 

Misdemeanor 7 

Mortgaged  personal  property,  removing 22 

Mortgages 351 

defeasance  clause,  form  of,  352;  form  of  note.  354. 

Mote  in  the  eye,  to  remove 1 496 

Murder T  T 

Mutilating  coin 46 

Names  of  the  months,  oripin  of  the 5°2 

Naturalization  laws  of  TJ.  S 474 

Naval  Academy  of  U.  S 473 

Navy,  the 483 


INDEX.  -  511 

PAGE. 

North  Pole 452 

Notes 385 

Nuisance 31 

Obscene  literature 37 

Oshkosh  case 215 

Partnership 401 

limited 406 

Perjury 28 

subornation  of 28 

Personating  another  falsely 29 

Points  of  law 459 

Population  of  U.  S 484 

Postal  regulations  .  .    476 

rates  to  foreign  countries,  478;  Universal  postal  union,  478. 

Power  of  attorney,  form  of 399 

Pregnancy,  signs  of 487 

Premeditation 11 

President  of  the  U.  S.,  how  he«is  chosen 466 

President's  salary 454 

Prize  fighting 26 

Rape 14 

Rare  coins,  their  value 460 

Real  property 334 

Religion  in  cards 504 

Requisition — (See  Extradition. ) 


Riot. 


27 


Robbery 15 

Royalty,  cost  of . . .    454 

Sale 377 

form  of  bill  of. 381 

Scarlet  fever .  492 

Seduction 36 

Seven  wonders  of  the  world 452 

Shooting  with  intent  to  kill 16 

Slander 18 

Small  pox 496 

Sore  throat 497 

Standard  time 456 

Statute  of  frauds   370 


512  INDEX. 

PAGE. 

Statutes  of  limitations 485 

Stoppage  in  transitu 380 

Supreme  Court  of  U.  S 473 

Swindling  games  and  tricks 254 

banco,  256;  beehive  or  haphazzard,  276;  book  game,  275; 
candy  boxes,  274;  confidence  game,  270;  flimflam,  277  ;  ring 
dropping,  281 ;  ringing  the  change,  282  ;  saw-dust  racket,  261 ; 
shell  workers,  269;  snide  auction,  280;  soap  racket,  281  ;  strap 
game,  276 .  three  card  monte,  268. 

Tenant  at  sufferance 337 

Tramps 33 

Treason 10 

misprision  of. » 10 

Vagrants 33 

Warrant,  peace 49 

search,  51  ;  affidavit  to  support,  64  ;  form  of,  65. 

Warranty 381 

Waste 337 

Weather  signal  flags 463 

West  Point  Military  Academy 473 

Wills 354 

how  to  make.  355;  witnesses  to,  356;  canceling,  356;  con- 
struction of,  357 ;  form  of,  357  ;  State  laws  on,  358. 


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